Sanatan Das & Anr. v. State of Orissa

Judgment

16.12.2024 ----------------------------------------------------------------------------- Biraja Prasanna Satapathy, J.

1. This matter taken up through Hybrid Arrangement (Virtual/Physical) Mode.

2. Heard learned counsel appearing for the Parties. // 2 //

3. The present Appeal has been filed challenging the order of conviction and sentence passed by learned Addl. Sessions Judge, Kendrapara S.T. Case No.147/91/32/91 vide judgment dtd.16.03.1992. Vide the said judgment, all the four appellants were convicted and sentenced to undergo R.I for two years and R.I for five years respectively for the offences under Sections 498-A and 306/34 of the I.P.C. However during pendency of the appeal since Appellant Nos.2 and 3 died, the appeal stands abated against appellant Nos.2 and 3 vide order dtd.16.02.2023.

4. Learned counsel for the Appellants contended that the victim married Appellant No.1 on 08.03.1988 and committed suicide by hanging herself on 24.09.1990. But basing on the information lodged before the local police by the father of the victim, the prosecution was set into motion. After filing of the charge sheet all the appellants were charged for the offence under Sections-306, 498(A)/34 of I.P.C. // 3 //

4.1. It is contended that the prosecution in order to prove the allegation though examined as many as 10 (ten) no’s. of witnesses, but no independent witness was examined in order to prove the allegation of demand of dowry and consequential abatement of committing the suicide by the deceased.

4.2. It is contended that since no independent witness was examined on behalf of the prosecution, conviction and sentence of the appellants for the offence under Section 306 read with Section 498(A)/34 of IPC could not have been made as against the appellants. On the other hand, it is contended that the defence examined as many as many as three no’s. of witnesses which includes D.W.1, who examined the victim on 19.09.1990.

4.3. It is contended that D.W.1 in his deposition clearly indicated that the victim was examined by her on

19.09.1990 and on such examination, it was found that the victim is having a patch in her cheek which may be hansem disease (leprosy). Statement of D.W.1 reads as follows:- // 4 // “I have brought the outdoor register of Pattamundai .H.C. 1990 as directed by the court. I treated one Sankukta Das She was suffering from dispecia and hypotermic patch over left knee. Ext. C is the relevant entry bearing serial Number No.4918 of the pediatric out door register. of Pattamundai P.H.C. This register is being maintained by me as Doctor in charge of Pediatric C.P.D. where patients of all age group are being treated. Ext. B is the prescription granted by me to Sanjukta Das. I advised her to attend S.C.B. Medical college Hospital, skin O.P.D. for detail examination of her skin smear and detail examination of patch and needful. This satch is due to various reason and one of the reason is hansem disease (leprosy). I have also advised her for examination of her stool and blood D.C. There is no provision for examination of skin smear in Pattamundai P.H.C. which is essential for determining the cause of patch.”

4.4. It is further contended that D.W.2 who accompanied the victim for such examination on 19.09.1990, also in his deposition clearly indicated that the deceased had been to the doctor-D.W.1 on 19.09.1990 and after such examination of the victim by the Doctor when transpired that the deceased is suffering from Leprosy, the deceased cried for around five days and thereafter committed the suicide on 24.09.1990.

4.5. It is also found from the examination of the D.W.2 that the father and other relatives of the deceased persuaded the appellants’ family not to disclose about the suffering of the deceased from such a disease. Similar evidence was also lead by D.W.3. // 5 //

4.6. Placing reliance on the evidence lead by the defence, learned counsel for the appellants contended that since the victim after being detected with such a disease committed suicide, the order of conviction and sentence passed against the appellants by the learned Addl. Sessions Judge, placing reliance on the provisions contained under Section-113-A of the Evidence Act is not sustainable in the eye of law.

4.7. It is contended that unless and until allegation of cruelty is proved, no presumption can be drawn, placing reliance on the provisions contained under Section-113-A of the Evidence Act that the appellants have abated the offence of suicide by the victim. In support of his aforesaid submission, learned counsel for the Appellants relied on the following decisions:-

1. Gumansinh v. State of Gujarat, reported in (2022) 15 SCC 767.

2. Naresh Kumar vs. State of Haryana, reported in (2024) 3 SCC-573. // 6 //

4.8. Gumansinh vs. State of Gujarat, reported in (2022) 15 SCC-767. Hon’ble Apex Court in Para-30 to 34 of the said judgment has held as follows:- Bench

30. This question came up for consideration before a three- Judge Chhattisgarh [Ramesh Kumar v. State of Chhattisgarh, (2001) 9 SCC 618 : 2002 SCC (Cri) 1088] . In para 12 of the said judgment, it has been observed as under : (SCC pp. 626- 27) Kumar v. State in Ramesh “12. This provision was introduced by the Criminal Law (Second) Amendment Act, 1983 with effect from 26-12-1983 to meet a social demand to resolve difficulty of proof where helpless married women were eliminated by being forced to commit suicide by the husband or in-laws and incriminating evidence was usually available within the four corners of the matrimonial home and hence was not available to anyone outside the occupants of the house. However still it cannot be lost sight of that the presumption is intended to operate against the accused in the field of criminal law. Before the presumption may be raised, the foundation thereof must exist. A bare reading of Section 113-A shows that to attract applicability of Section 113-A, it must be shown that (i) woman has committed suicide, (ii) such suicide has been committed within a period of seven years from the date of her marriage, (iii) the husband or his relatives, who are charged had subjected her to cruelty. On existence and availability of the abovesaid circumstances, the court may presume that such suicide had been abetted by her husband or by such relatives of her husband. Parliament has chosen to sound a note of caution. Firstly, the presumption is not mandatory; it is only permissive as the employment of expression “may presume” suggests. Secondly, the existence and availability of the abovesaid three circumstances shall not, like a formula, enable the presumption being drawn; before the presumption may be drawn the court shall have to have regard to ‘all the other circumstances of the case’. A consideration of all the other circumstances of the case may strengthen the presumption or may dictate the conscience of the court to abstain from drawing the presumption. The expression — “the other circumstances of the case” used in Section 113-A suggests the need to reach a cause-and-effect relationship between the cruelty and the suicide for the // 7 // purpose of raising a presumption. Last but not the least, the presumption is not an irrebuttable one. In spite of a presumption having been raised the evidence adduced in defence or the facts and circumstances otherwise available on record may destroy the presumption. The phrase “may presume” used in Section 113-A is defined in Section 4 of the Evidence Act, which says — ‘whenever it is provided by this Act that the court may presume a fact, it may either regard such fact as proved, unless and until it is disproved, or may call for proof of it.’ ” (emphasis in original)

31. From the above observations, it becomes clear that to attract the applicability of Section 113-A of the Evidence Act, three conditions are required to be fulfilled: (i) The woman has committed suicide, (ii) Such suicide has been committed within a period of seven years from the date of her marriage, (iii) The charged-accused had subjected her to cruelty.

32. From the facts of the case at hand, all the three conditions stand fulfilled. There is no dispute about the facts that the deceased committed suicide within a period of seven years from the date of her marriage and charged-accused had subjected her to cruelty, as we have confirmed the findings of the trial court as well as the High Court that prosecution has been successful in proving the charge of cruelty under Explanation (b) of Section 498-AIPC.

33. It is no doubt correct that the existence and availability of the abovesaid three circumstances are not to be invoked, like a formula, to enable the presumption being drawn and the presumption is not an irrebuttable one, as held by a three- Judge Bench of this Court in Ramesh Kumar v. State of Chhattisgarh [Ramesh Kumar v. State of Chhattisgarh, (2001) 9 SCC 618 : 2002 SCC (Cri) 1088] .

34. At this stage, we may also make a reference to Section 4 of the Evidence Act, which defines the phrase “may presume” used in Section 113-A, which reads as under: “ “Shall Presume”.—Whenever it is directed by this Act that the Court shall presume a fact, it shall regard such fact as proved, unless and until it is disproved.” // 8 //

4.9. Naresh Kumar vs. State of Haryana, reported in (2024) 3 SCC-573. Hon’ble Apex Court in Para-15 to 22, 25 to 29, 31 to 36 & 40 of the said judgment has held as follows:- “15. Section 306IPC reads as under: “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.” 16. Thus, the basic ingredients to constitute an offence under Section 306IPC are suicidal death and abetment thereof. Abetment of a thing is defined under Section 107IPC as under: “107. Abetment of a thing.—A person abets the doing of a thing, who— First.—Instigates any person to do that thing; or Secondly.—Engages with one or more other person or persons in any conspiracy for the doing of that thing, if an act or illegal omission takes place in pursuance of that conspiracy, and in order to the doing of that thing; or Thirdly.—Intentionally aids, by any act or illegal omission, the doing of that thing. Explanation by wilful misrepresentation, or by wilful concealment of a material to disclose, voluntarily causes or procures, or attempts to cause or procure, a thing to be done, is said to instigate the doing of that thing. Explanation 2.— Whoever, either prior to or at the time of the commission of an act, does anything in order to facilitate the commission of that act, and thereby facilitate the commission thereof, is said to aid the doing of that act.” fact which he person who is bound

1.—A // 9 // This Court Court in Geo something. Varghese v. State

17. This Rajasthan [Geo Varghese v. State of Rajasthan, (2021) 19 SCC 144] , considering the provisions of Section 306IPC along with the definition of abetment under Section 107IPC observed as under : (SCC pp. 149-50, paras 14-16) “14. Section 306IPC makes abetment of suicide a criminal offence and prescribes punishment for the same. … 15. The ordinary dictionary meaning of the word “instigate” is to bring about or initiate, incite someone in Ramesh Kumar v. State Chhattisgarh [Ramesh Kumar v. State of Chhattisgarh, (2001) 9 SCC 618 : 2002 SCC (Cri) 1088] , has defined the word “instigate” as under : (SCC p. 629, para 20) ‘20. Instigation is to goad, urge forward, provoke, incite or encourage to do “an act”.’ 16. The scope and ambit of Section 107IPC and its co- relation with Section 306IPC has been discussed repeatedly by this Court. In S.S. Chheena v. Vijay Kumar Mahajan [S.S. Chheena v. Vijay Kumar Mahajan, (2010) 12 SCC 190 : (2011) 2 SCC (Cri) 465] , it was observed as under : (SCC p. 197, para 25) ‘25. Abetment involves a mental process of instigating a person or intentionally aiding a person in doing of a thing. Without a positive act on the part of the accused to instigate or aid in committing suicide, conviction cannot be sustained. The intention of the legislature and the ratio of the cases decided by the Supreme Court is clear that in order to convict a person under Section 306IPC there has to be a clear mens rea to commit the offence. It also requires an active act or direct act which led the deceased to commit suicide seeing no option and that act must have been intended to push the deceased into such a position that he committed suicide.’ ” Court

18. This Arjunan v. State [M. in M. Arjunan v. State, (2019) 3 SCC 315 : (2019) 2 SCC (Cri) 219] , while explaining the necessary ingredients of Section 306IPC in detail, observed as under : (SCC p. 317, para 7) “7. The essential ingredients of the offence under Section 306IPC are : (i) the abetment; (ii) the intention of the accused to aid or instigate or abet the deceased to commit suicide. The act of the accused, however, // 10 // insulting the deceased by using abusive language will not, by itself, constitute the abetment of suicide. There should be evidence capable of suggesting that the instigate the accused deceased to commit suicide. Unless the ingredients of instigation/abetment to commit suicide are satisfied, the accused cannot be convicted under Section 306IPC.” intended by such act to

19. This Court in Ude Singh v. State of Haryana [Ude Singh v. State of Haryana, (2019) 17 SCC 301 : (2020) 3 SCC (Cri) 306] , held that in order to convict an accused under Section 306 IPC, the state of mind to commit a particular crime must be visible with regard to determining the culpability. It was observed as under : (SCC pp. 321-22, para 16) “16. In cases of alleged abetment of suicide, there must be a proof of direct or indirect act(s) of incitement to the commission of suicide. It could hardly be disputed that the question of cause of a suicide, particularly in the context of an offence of abetment of suicide, remains a vexed one, involving multifaceted and complex attributes of human behaviour and responses/reactions. In the case of accusation for abetment of suicide, the court would be looking for cogent and convincing proof of the act(s) of incitement to the commission of suicide. In the case of suicide, mere allegation of harassment of the deceased by another person would not suffice unless there be such action on the part of the accused which compels the person to commit suicide; and such an offending action ought to be proximate to the time of occurrence. Whether a person has abetted in the commission of suicide by another or not, could only be gathered from the facts and circumstances of each case. 16.1. For the purpose of finding out if a person has abetted commission of suicide by another, consideration would be if the accused is guilty of the act of instigation of the act of suicide. As explained and reiterated by this Court in the decisions above referred, instigation means to goad, urge forward, provoke, incite or encourage to do an act. If the persons who hypersensitive and the action of accused is otherwise induce a similarly not ordinarily expected circumstanced person to commit suicide, it may not be safe to hold the accused guilty of abetment of suicide. committed suicide // 11 // But, on the other hand, if the accused by his acts and by his continuous course of conduct creates a situation which leads the deceased perceiving no other option except to commit suicide, the case may fall within the four corners of Section 306IPC. If the accused plays an active role in tarnishing the self- esteem and self-respect of the victim, which eventually draws the victim to commit suicide, the accused may be held guilty of abetment of suicide. The question of mens rea on the part of the accused in such cases would be examined with reference to the actual acts and deeds of the accused and if the acts and deeds are only of such nature where the accused intended nothing more than harassment or snap show of anger, a particular case may fall short of the offence of abetment of suicide. However, if the accused kept on irritating or annoying the deceased by words or deeds until the deceased reacted or was provoked, a particular case may be that of abetment of suicide. Such being the matter of delicate analysis of human behaviour, each case is required to be examined on its own facts, while taking note of all the surrounding factors having bearing on the actions and psyche of the accused and the deceased.” Court in Mariano

20. This Anto Bruno v. State [Mariano Anto Bruno v. State, (2023) 15 SCC 560 : 2022 SCC On Line SC 1387] , after referring to the above referred decisions rendered in context of culpability under Section 306IPC observed as under : (SCC para 45) “45. … It is also to be borne in mind that in cases of alleged abetment of suicide, there must be proof of direct or indirect acts of incitement to the commission of suicide. Merely on the allegation of harassment without there being any positive action proximate to the time of occurrence on the part of the accused which led or compelled the person to commit suicide, conviction is not sustainable.” terms of Section 306IPC

21. This Court in Gurcharan Singh v. State of Punjab [Gurcharan Singh v. State of Punjab, (2020) 10 SCC 200 : (2021) 1 SCC (Cri) 417] , observed that whenever a person instigates or intentionally aids by any act or illegal omission, the doing of a thing, a person can be said to have abetted in doing that // 12 // thing. To prove the offence of abetment, as specified under Section 107IPC, the state of mind to commit a particular crime must be visible, to determine the culpability. Court to bring in Kashibai v. State

22. This Karnataka [Kashibai v. State of Karnataka, (2023) 15 SCC 751 : 2023 SCC OnLine SC 575] , observed the purview of the case within “abetment” under Section 107IPC, there has to be an evidence with regard to the instigation, conspiracy or intentional aid on the part of the accused and for the purpose proving the charge under Section 306IPC, also there has to be an evidence with regard to the positive act on the part of the accused to instigate or aid to drive a person to commit suicide. xxx xxx xxx

25. It is now well settled that in order to convict a person under Section 306IPC there has to be a clear mens rea to commit the offence. Mere harassment is not sufficient to hold an accused guilty of abetting the commission of suicide. It also requires an active act or direct act which led the deceased to commit suicide. The ingredient of mens rea cannot be assumed to be ostensibly present but has to be visible and conspicuous.

26. We take notice of the fact that the High Court has laid much emphasis on Section 113-A of the Evidence Act.

27. Section 113-A of the Evidence Act reads thus: “113-A. Presumption as to abetment of suicide by a married woman.—When the question 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 a 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 the other circumstances of the case, that such suicide had been abetted by her husband or by such relative of her husband. to all // 13 // Explanation.—For this section, “cruelty” shall have the same meaning as in Section 498-A of the Indian Penal Code (45 of 1860).” the purposes of

28. This Section was introduced by Criminal Law (Second Amendment) Act 46 of 1983. The Penal Code, the Code of Criminal Procedure, 1973 and the Evidence Act were amended keeping in view the dowry death problems in India.

29. Section 113-A of the Evidence Act requires proof : (1) that her husband or relatives subjected her to cruelty, and (2) that the married woman committed suicide within a period of seven years from the date of her marriage. xxx xxx 31. In this appeal, we are concerned with Section 113-A of the Evidence Act. The mere fact that the deceased committed suicide within a period of seven years of her marriage, the presumption under Section 113-A of the Evidence Act would not automatically apply. The legislative mandate is that where a woman commits suicide within seven years of her marriage and it is shown that her husband or any relative of her husband had subjected her to cruelty, the presumption under Section 113-A of the Evidence Act may be raised, having regard to all other circumstances of the case, that such suicide had been abetted by her husband or by such relative of her husband.

32. What is important to note is that the term “the court may presume having regard to all other circumstances of the case that such suicide had been abetted by her husband” would indicate that the presumption is discretionary, unlike the presumption under Section 113-B of the Evidence Act, which is mandatory. Therefore, before the presumption under Section 113-A is raised, the prosecution must show evidence of cruelty or incessant harassment in that regard.

33. The court should be extremely careful assessing evidence under Section 113-A for finding out if cruelty was meted out. If it transpires that a victim committing suicide was hypersensitive to // 14 // ordinary petulance, discord and differences domestic life quite common to the society to which the victim belonged and such petulance, discord and differences were not expected to induce a similarly circumstanced individual in a given society to commit suicide, the conscience of the court would not be satisfied for holding that the accused charged of abetting the offence of suicide was guilty. 34. Section 113-A has been interpreted by this Court in Lakhjit Punjab [Lakhjit Singh v. State of Punjab, 1994 Supp (1) SCC 173 : 1994 SCC (Cri) 235] , Pawan Kumar v. State of Haryana [Pawan Kumar v. State of Haryana, (1998) 3 SCC 309 : 1998 SCC (Cri) 740] and Shanti v. State of Haryana [Shanti v. State of Haryana, (1991) 1 SCC 371 : 1991 SCC (Cri) 191] . Singh v. State

35. This Court has held that from the mere fact of suicide within seven years of marriage, one should not jump to the conclusion of abetment unless cruelty was proved. The court has the discretion to raise or not to raise the presumption, because of the words “may presume”. It must take into account all the circumstances of the case which is an additional safeguard.

36. In the absence of any cogent evidence of harassment or cruelty, an accused cannot be held guilty for the offence under Section 306IPC by raising presumption under Section 113-A. xxx xxx 40. For all the foregoing reasons, we have reached to the conclusion that the prosecution has not been able to establish the accused beyond reasonable doubt”. the guilt of

4.10. Making all the submissions, learned counsel for the Appellants contended that the order of conviction and sentence passed against the appellants is liable for interference of this Court. // 15 //

5. Mr. C.K. Pradhan, learned Addl. Government Advocate for the State on the other hand while supporting impugned judgment contended that since the marriage of the victim had taken place with the appellant No.1 on 08.03.1988 and the victim died on suspicious circumstances on 24.09.1990, learned Court below placing reliance on the provisions contained under Sections -113-A of the Evidence Act has rightly passed the order of conviction and sentence vide the impugned judgment.

6. It is also contended that taking into account the evidence of P.Ws 1 to 7 and the evidence of the I.O as P.Ws.9 and 10, learned Trial Court has come to a right conclusion that the victim committed the suicide because of the act committed by the appellants.

6.1. It is accordingly contended that no interference is called for with regard to such order of conviction and sentence passed against the appellants.

7. Having heard learned counsel appearing for the Parties and considering the submissions made, this Court // 16 // finds that the victim got married to Appellant No.1 on

08.03.1988. It is not disputed that the deceased committed suicide by way of hanging on 24.09.1990. As found from the record, the prosecution in order to prove the allegation of demand of dowry and torture has not examined any independent witnesses in support of the fact that the victim was subjected to cruelty, which forced the victim to commit the suicide.

7.1. However, placing reliance on the evidence laid by the defence, it is found that the victim after being suspected by the Doctor-D.W.1 to have been suffering from Leprosy on 19.09.1990, she committed suicide by hanging herself on 24.09.1990. Since no independent witness has been examined by the prosecution proving the allegation of demand of dowry as well as cruelty inflicted on the victim by the appellants as per the considered view of this Court, reliance placed on the provisions contained under Section-113-A of the Evidence Act by the learned Addl. Sessions Judge, while holding the appellants guilty of the offence under Sections-498-A, 306/34 I.P.C as per the // 17 // considered view of this Court is not sustainable in the eye of law. Not only that in view of the decision relied on by the learned counsel appearing for the appellants, such a presumption cannot be drawn against the appellants in absence of any cogent evidence laid through independent witnesses.

7.2. In that view of the matter, this Court is inclined to interfere with impugned judgment passed on

16.03.1992. While interfering with the same, this Court is inclined to set-aside the order of conviction and sentence passed against the appellant Nos.1 and 4. Vide the impugned judgment dtd.16.03.1992, so passed in S.T. Case No.147/91/32/91 and quash the same accordingly. Appellant Nos.1 and 4 also stands discharged from the bail bond.

8. The appeal accordingly stands allowed and disposed of. Signature Not Verified Digitally Signed Signed by: SUBRAT KUMAR BARIK Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 24-Dec-2024 11:47:26 Orissa High Court, Cuttack Dated the 16th of December, 2024/Subrat (Biraja Prasanna Satapathy) Judge