TaxTMI 
TaxTMI 
2017 (4) TMI 1655
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....new and different beginning. The accused feels that he has been prosecuted due to the prosecutrix and gets obsessed with idea of threatening the girl and that continues and eventually eve-teasing becomes a matter of routine. Here, as the exposition of the prosecution uncurtains, a situation is created by the accused which becomes insufferable, where the young girl feels unassured and realizes that she could no more live in peace. The feeling gets embedded and the helpless situation compels her to think that the life is not worth living. Resultantly, she pours kerosene on her body and puts herself ablaze but death does not visit instantly and that is how she was taken to a nearby hospital, where in due course of investigation, her dying declaration is recorded, but she ultimately succumbs to her injuries and the "prana" leaves the body and she becomes a "body" - a dead one. 3. The question that is required to be answered is whether the accused can be convicted under Section 306 IPC. The case of the prosecution as projected is that deceased was the daughter of the informant, PW-1, Sukh Dev, and after acquittal in the case under Sections 363, 366 and 376 IPC, the accused-appellant ....
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....even years and to pay fine of Rs. 10,000/- and in default of payment of fine, to further undergo rigorous imprisonment for a period of one year. 6. We have heard Mr. Sanchar Anand, learned counsel for the appellant and Mr. D.K. Thakur, learned Additional Advocate General for the respondent-State. 7. It is submitted by Mr. Anand, learned counsel for the appellant that the judgment rendered by the learned trial Judge is absolutely flawless since he has analysed the evidence in great detail and appreciated them in correct perspective. It is his further submission that the trial court scrutinizing the medical evidence and the burn injuries sustained by the victim has appositely discarded the dying declaration, Ex.PW-10/A. It is further put forth that when cogent reasons have been ascribed by the trial court for not placing reliance upon the dying declaration and the testimony of the prosecution witnesses, the High Court, in such a fact situation, should have been well advised not to interfere with the judgment of acquittal. It is also canvassed by him that when the appreciation of evidence by the trial court is not perverse and the view expressed by it is a plausible one, the Hig....
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....ins the higher court not to upset the finding without very convincing reasons and comprehensive consideration. 11. In State of Karnataka v. K. Gopalakrishna [(2005) 9 SCC 291], it has been held that where the findings of the court below are fully unreasonable or perverse and not based on the evidence on record or suffer from serious illegality and include ignorance and misreading of record, the appellate court will be justified in setting aside such an order of acquittal. 12. In Girja Prasad (dead) by LRs. v. State of M.P. [(2007) 7 SCC 625], it has been observed that in an appeal against acquittal the appellate court has every power to reappreciate, review and reconsider the evidence as a whole before it. The Court further stated that it is, no doubt, true that there is a presumption of innocence in favour of the accused and that presumption is reinforced by an order of acquittal recorded by the trial court, but that is not the end of the matter, for it is for the appellate court to keep in view the relevant principles of law, to reappreciate and reweigh the evidence as a whole and to come to its own conclusion in accord with the principles of criminal jurisprudence. 13. ....
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....of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court. (5) If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court." 15. In Shivaji Sahabrao Bobade (supra), taking note of the contemporary context, the Court held:- "....The dangers of exaggerated devotion to the rule of benefit of doubt at the expense of social defence and to the soothing sentiment that all acquittals are always good regardless of justice to the victim and the community, demand especial emphasis in the contemporary context of escalating crime and escape. The judicial instrument has a public accountability. The cherished principles or golden thread of proof beyond reasonable doubt which runs through the web of our law should not be stretched morbidly to embrace every hunch, hesitancy and degree of doubt. The excessive solicitude reflected in the att....
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....at the victim was not in a position to speak and had sustained 80% burn injuries and further as her both hands were burnt, she could not have written what has been alleged to have written by her in the said document. On that ground, the learned trial Judge arrived at the conclusion that it would not be safe to rely on the said dying declaration. Be it noted, Ex. PW-10/A was written by the deceased on 24.07.2008. He has also disbelieved the testimony of the material witnesses on the same ground. 18. As is evincible, the learned trial Judge has also not found Ex. PW-10/A, which had been recorded on 24.07.2008 by the investigating officer, PW-13, as reliable as the victim was under treatment and the medical officer PW-10, Dr. Sanjay, who had deposed that he had appended his endorsement in PW-10/B, but not issued any certificate that the victim was mentally fit to give her statement. Leaned trial Judge has observed that barring the aforesaid evidence, there is no other evidence on record to connect the accused with the crime. It is worthy to note that he has referred to the post- mortem report which recorded that the victim had suffered burn injuries and finally arrived at the concl....
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....atement. 21. After analyzing the evidence, the High Court has found that the trial court has acquitted the accused on the ground that the deceased was not fit to write Ex. PW-10/A and PW-10, Dr. Sanjay, had not issued the certificate that the deceased was in a fit mental condition to give the statement on 24.07.2008. The High Court has observed that it had perused Ex. PW-10/A wherefrom it was reflectible that the victim had written that the accused would be responsible for her death. The analysis of the High Court is as follows:- "It is evident from the handwriting that Shalu was in tremendous pain and agony when she was writing that accused would be responsible for her death. This was written on 19.7.2008. It is also written in Ext. PW-2/A by the Pradhan that Shalu had received burn injuries and she told him that accused used to tease her. Thus she has taken this extreme step. It has come in the statement of PW-1 Sukh Dev and his wife (PW-9) Sawarna Devi that the accused used to tease their daughter even after his acquittal in criminal case. They had informed this fact to the Pradhan of Gram Panchayat, PW-2 Jai Singh. Jai Singh (PW-2) has also admitted that complaint w....
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....d written what the deceased had spoken and thereafter the deceased had written that the accused alone was responsible for her death. The dying declaration, as has been recorded by the Head Constable, eloquently states about the constant teasing of the victim by the accused. PW-10, Dr. Sanjay, has stood firm in his testimony that the victim was in a fit condition to speak. Despite the roving cross-examination he has not paved the path of tergiversation. The trial court, as mentioned earlier, has disregarded the testimony of PW-10 on the ground that there is no certificate of fitness. In this context, reference to the Constitution Bench decision in Laxman v. State of Maharashtra [(2002) 6 SCC 710] would be absolutely seemly. In the said case, the larger Bench, while stating the law relating to the dying declaration, has succinctly held:- "3. ... A dying declaration can be oral or in writing and any adequate method of communication whether by words or by signs or otherwise will suffice provided the indication is positive and definite. In most cases, however, such statements are made orally before death ensues and is reduced to writing by someone like a Magistrate or a doctor ....
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....nviction. (vii) Merely because a dying declaration does not contain all the details as to the occurrence, it is not to be rejected. (viii) Even if it is a brief statement, it is not to be discarded. (ix) When the eyewitness affirms that the deceased was not in a fit and conscious state to make the dying declaration, medical opinion cannot prevail. (x) If after careful scrutiny, the court is satisfied that it is true and free from any effort to induce the deceased to make a false statement and if it is coherent and consistent, there shall be no legal impediment to make it the basis of conviction, even if there is no corroboration." 26. Recently, in Gulzari Lal (supra), the Court confirmed the conviction by placing reliance on the statement made by the deceased and recorded by the Head Constable on the basis of the principles stated in Laxman (supra). The analysis in the said case is as follows:- "23. In reference to the position of law laid down by this Court, we find no reason to question the reliability of the dying declaration of the deceased for the reason that at the time of recording his statement by the Head Constable Manphool S....
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....ing 99% burn injuries could be deemed capable enough for the purpose of making a dying declaration. The Court in the said case opined that unless there existed some inherent and apparent defect, the trial court should not have substituted its opinion for that of the doctor. In the light of the facts of the case, the dying declaration was found to be worthy of reliance." 28. Quite apart from the above, her dying declaration has received support from the other witnesses. In view of the corroborative evidence, we are of the considered opinion that the High Court has correctly relied upon this aspect and has reversed the finding of the trial court. 29. As far as reliability of evidence of PW-1 and PW-9, the parents of the victim are concerned, the reasons for not treating their version as reliable is based on the fact that they had not reported the incident in writing to the Gram Panchayat. On a perusal of the evidence in entirety, we find that the High Court has appropriately dislodged the analysis made by the trial court. The evidence has to be appreciated regard being had to various circumstances. It is to be noted that the accused has been acquitted in the earlier offence and....
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....rized by a warrant from a Court of Justice to apprehend Z. B, knowing that fact and also that C is not Z, wilfully represents to A that C is Z, and thereby intentionally causes A to apprehend C. Here B abets by instigation the apprehension of C. Explanation 2.-Whoever, either prior to or at the time of the commission of an act, does anything in order to facilitate the commission of that act, and thereby facilitate the commission thereof, is said to aid the doing of that act." "Abetment", thus, means certain amount of active suggestion or support to do the act. 33. Analysing the concept of "abetment" as found in Section 107 IPC, a two-Judge Bench in Chitresh Kumar Chopra v. State (Government of NCT of Delhi) [(2009) 16 SCC 605] has held:- "13. As per the section, a person can be said to have abetted in doing a thing, if he, firstly, instigates any person to do that thing; or secondly, engages with one or more other person or persons in any conspiracy for the doing of that thing, if an act or illegal omission takes place in pursuance of that conspiracy, and in order to the doing of that thing; or thirdly, intentionally aids, by any act or illegal omission, the....
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....thing is required before a person can be said to be abetting the commission of offence under Section 306 IPC." [emphasis supplied] 37. In Praveen Pradhan v. State of Uttaranchal & another [(2012) 9 SCC 734], it has been ruled:- "18. In fact, from the above discussion it is apparent that instigation has to be gathered from the circumstances of a particular case. No straitjacket formula can be laid down to find out as to whether in a particular case there has been instigation which forced the person to commit suicide. In a particular case, there may not be direct evidence in regard to instigation which may have direct nexus to suicide. Therefore, in such a case, an inference has to be drawn from the circumstances and it is to be determined whether circumstances had been such which in fact had created the situation that a person felt totally frustrated and committed suicide. ..." [emphasis is ours] 38. In Amalendu Pal alias Jhantu v. State of West Bengal [(2010) 1 SCC 707], the Court, after referring to the authorities in Randhir Singh (supra), Kishori Lal v. State of M.P. [(2007) 10 SCC 797] and Kishangiri Mangalgiri Goswami v. State of Gujarat [(2009) 4 SCC 52],....
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....to be invoked. We quash the criminal proceedings initiated against the appellant and accordingly allow the appeal." 40. At this juncture, we think it appropriate to reproduce two paragraphs from Chitresh Kumar Chopra (supra). They are:- "16. Speaking for the three-Judge Bench in Ramesh Kumar case (supra), R.C. Lahoti, J. (as His Lordship then was) said that instigation is to goad, urge forward, provoke, incite or encourage to do "an act". To satisfy the requirement of "instigation", though it is not necessary that actual words must be used to that effect or what constitutes "instigation" must necessarily and specifically be suggestive of the consequence. Yet a reasonable certainty to incite the consequence must be capable of being spelt out. Where the accused had, by his acts or omission or by a continued course of conduct, created such circumstances that the deceased was left with no other option except to commit suicide, in which case, an "instigation" may have to be inferred. A word uttered in a fit of anger or emotion without intending the consequences to actually follow, cannot be said to be instigation. x x x x x 19. As observed in Ramesh Kumar (supra)....
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....conduct created such a situation as a consequence of which the deceased was left with no other option except to commit suicide. The active acts of the accused have led the deceased to put an end to her life. That apart, we do not find any material on record which compels the Court to conclude that the victim committing suicide was hypersensitive to ordinary petulance, discord and difference in domestic life quite common to the society to which the victim belonged. On the other hand, the accused has played active role in tarnishing the self-esteem and self-respect of the victim which drove the victim girl to commit suicide. The cruelty meted out to her has, in fact, induced her to extinguish her life-spark. 43. As is demonstrable, the High Court has not reversed the judgment of acquittal solely on the basis of dying declaration. It has placed reliance on the evidence of the parents and also other witnesses. It has also treated the version of the Pradhan of the Gram Panchayat as credible. All these witnesses have deposed that the accused after his acquittal engaged himself in threatening and teasing the girl. He did not allow her to live in peace. 44. The harassment caused to h....