Hanif Khan vs State Of Rajasthan on 31 August, 2017

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Criminal Appeal No. 195 / 1994
Hanif Khan s/o Ismile Khan B/c Kayamkhani R/o Rajgarh, District
Churu.

—-Appellant
Versus
State Of Rajasthan

—-Respondent
__
For Appellant(s) :Mr. Kulwant Singh
For Respondent(s) :Mr. JPS Choudhary, PP
__
HON’BLE MR. JUSTICE MANOJ KUMAR GARG
Judgment
31/08/2017

The instant criminal appeal has been filed by the accused-

appellants Under Section 374 (2) Cr.P.C. against the judgment

dated 08.04.1994 passed by Additional Sessions Judge, Churu

Camp at Rajgarh in sessions Case No. 102/1992 by which the

learned Judge convicted and sentenced the accused-appellant as

under:-

1. U/s 306 IPC – To five years Rigorous Imprisonment
with a fine of Rs. 250/-, in default of payment of fine, to
further undergo two months simple additional imprisonment.

2. U/s 498-A IPC- To Nine months Rigorous Imprisonment
with a fine of Rs. 100/-, in default of payment of fine, to
further undergo one month simple additional imprisonment.

Both the sentences were ordered to run concurrently.

The brief facts of the case are that PW/2 Umrao Khan
(2 of 14)
[CRLA-195/1994]

complainant filed a written report in which he has mentioned that

his daughter Chhoti @ Sarafat Bano was married with accused-

appellant Hanift Khan about ten years back. At the time of the

marriage, he gave sufficient dowry alongwith gold and silver

ornaments. After this wedlock, one son was born after about two

years of the marriage. At that time also he gave gold and silver

ornaments. After four years of the marriage, the accused-

appellant Hanif Khan went to Iraq, then his daughter visited her

parental house and she narrated that her husband and mother-in-

law both harassed her and demanded more dowry. Hanif Khan

resided in Iraq about seven months and when he came , he sent

back his daughter to her parental house. Then she again narrated

that her husband and her mother-in-law both started beating and

they also snatched her gold ornaments and demanded dowry. She

also told that her “Nanad” Hamida told to her husband to leave

her and arrange second marriage. His daughter resided about

three years in her parental house because her husband Hanif Khan

went for earning livelihood at Nasik and other places. About two

years back, Hanif Khan promised the comlpainant that in future he

will not harass Chhoti @ Sarafat Bano Consequently, the

complainant sent back his daughter with Hanif Khan where she

resided for about four months and again came back because her

husband again went to Nasik. Hanif Khan visited the complainant’s

house about one year back and again he promised that in future

he will not harass his daughter. After some time, the complainant’s

daughter wrote a letter. When she again visited her parental

house, at that time she was not wearing any gold ornaments and
(3 of 14)
[CRLA-195/1994]

she told that all the gold ornaments were kept by her husband.

About two and half month back his daughter went to her in-laws

house and she demanded her gold ornaments then her husband

and mother-in-laws both starting quarreling with her. The

complainant received a letter that Chhoti expired on 18.07.1990.

The complainant also received some letters from his

daughter as well as her husband in which he came to know that

Hanfi Khan was having illicit relation with another woman and they

killed my daughter Chhoti.

On the said report, the Police registered the FIR

No.180/1990 for offence under Sections 306, 498-A IPC and

started investigation. After due investigation police filed challan

against the accused-appellant for the offence under section 306,

498-A IPC before the Court of Munsif and Judicial Magistrate

Rajgarh. Later on this case was transferred to the court of

Additional Sessions Judge, Churu Camp at Rajgarh.

The learned trial court after hearing the arguments and

considering the material on record, framed charges against

accused-appellant for offences under Sections 498A 306 IPC.

The accused-appellant pleaded not guilty and claimed trial.

At the trial, the prosecution examined as many as 12

witnesses in all and exhibited certain documents. Thereafter the

statement of the accused-appellant was recorded under section

313 Cr.P.C. On the defence side, statement of DW/1 Lal Mohd.

Singh and Dw/2 Chandrabhan were recorded.

(4 of 14)
[CRLA-195/1994]

At the conclusion of the trial, the learned Additional

Sessions Judge, Churu Camp at Rajgarh vide judgment dated

08.04.1994 convicted and sentence the accused-appellant as

mentioned earlier. Hence this criminal appeal at the instance of

the accused-appellant against his conviction.

The learned counsel for the accused-appellant has argued

that the occurrence as mentioned in the FIR has taken place on

18th July 1990 and for the first time this FIR has been registered

on 07.08.1990 and written report was filed on 5 th August 1990.

This delay has not at all been explained by the complainant.

Counsel further argued that in the FIR the complainant mentioned

the name of the husband of the deceased as well as mother-in-

laws and sister-in-laws but after thorough investigation police filed

challan only against the present appellant. This shows that the

said story has already been disbelieved by the police. Counsel

further argued that according to the postmortem report of

deceased (Musammat Sarafat Bano) the cause of death is due to

asphyxia as a result of drowning so this is a case of simple suicide.

It is further argued that some letters were on the record and the

letters were written in the year 1986 to 1988 and this occurrence

has taken place in the year 1990 and in those letters also there

were no averments about the abetement to commit suicide. So,

on the basis of these letters no offence under Section 498-A and

306 IPC is made out against the present accused-appellant so the

conviction recorded against the present accused-appellant by the

trial Court is erroneous in the eye of law and deserves to be set

aside. The appeal of the accused-appellant may kindly be allowed
(5 of 14)
[CRLA-195/1994]

and the accused appellant may be acquitted. In support of his

contentions, the learned counsel for the appellants has relied upon

the judgment of the Hon’ble Supreme Court in the case of

Gangula Mohan Reddy Vs. State of Andra Predesh [(2010) 1 SCR

9].

Per contra, learned Public Prosecutor has supported the

judgment of the trial Court and prayed that the appeal of the

accused-appellant may be dismissed.

Heard learned counsel for the accused-appellant as well as

learned public prosecutor and perused the judgment impugned as

also gone through the record of the case.

The deceased Musammat Sarafat Bano @ Chhoti wife of

appellant Hanif Khan expired on 19.07.1990 and at that time

proceedings under section 174 Cr.P.C was started in which police

recorded the statements of various witnesses and they clearly

mentioned that deceased was taking water from the water tank

and all of sudden her feet slipped. Due to this reason she fell down

and expired. This story was corroborated from the postmortem

report because no injury was found in her body according to the

postmortem Ex.P/9 the cause of death of deceased is due to

asphyxia as a result of drowning.

This is not in dispute that FIR of the occurrence has been

registered after about 20 days of the occurrence. This also shows

that an FIR was registered which is a very delayed one.

PW/1 Smt.Phool Bano, who is mother of the deceased has

stated in her statement that her daughter’s husband, mother-in-

laws and sister-in-laws were harassing her daughter. Her marriage
(6 of 14)
[CRLA-195/1994]

took place about 10 to 12 years back. In her cross-examination,

she mentioned that whenever her daughter informed about the

act of harassment by in-laws, they never called any type of

Panchayat and they never informed anybody about this act of

harassment by the accused-appellant.

PW/2 Umrao Khan, he lodged the written report after

considerable delay but he mentioned in his statement that first of

all Ahsan filed a report to the police.

On the perusal of the record, no report of Ahsan was ever

traced out. So this shows that PW/2 Umrao Khan himself filed the

report which is dated 05.08.1990 about 20 days after the

occurrence. In his cross-examination he mentioned that whatever

he wrote in the report, was written by somebody and he put his

signature in that report and all the incident was narrated by

Jangsher.

PW/3 Jangsher who has mentioned that whenever Chhoti

visited her parental house then her mother-in-law, sister-in-law

and husband harassed her and they killed Chhoti. In his cross-

examination he mentioned that he never said about the incident to

anybody.

PW/4 Ahsan Khan, who is brother of the deceased, has also

stated omnibusly against all the family members of the accused-

appellant. He identified that some letters were written by her

sister.

PW/5 Dr. Mohan Lal Meena who conducted the postmortem

of the deceased. PW/6 Om Prakash who was an SHO and recorded

the FIR.

(7 of 14)
[CRLA-195/1994]

PW/7 Inayat Khan, who has mentioned that all the family

members of the deceased starting harassing. In his cross-

examination he mentioned that he alongwith other family

members went to their house. He mentioned that after cremation

of the deceased, they filed a written report to the police and they

came back to their house but no such report is available on

record.

PW/8 Patram who was a carrier. PW/9 Bhanwar Singh who

was SHO and registered the proceeding under Section 174 Cr.P.C

and investigated the matter and he also mentioned that in his

investigation, he found that no offence is made out against the

accused-appellant.

PW/10 Kamal Kumar Bangadi was a Munsif and Judicial

Magistrate in whose presence his specimen of hand writing was

taken. PW/11 Buddhram who was a Malkhana In-charge. PW/12

Riddhi Karan who was an Additional S.P. and who conducted the

investigation in this case. These are all the prosecution witnesses.

The defence witness DW/1 Lal Mohd. who was an

independent witness and mentioned that when the deceased

expired on that day there was a rain and deceased went for taking

water from the water tank (well) and all of sudden her leg slipped

and she fell down and expired. Likewise DW/2 Chandrabhan, who

is neighbour of the accused appellant, has mentioned that she

always visited to their house and she never stated anything

against the accused appellant for harassment or anything else and

on the day of incident there was a rain and all of sudden she fell
(8 of 14)
[CRLA-195/1994]

down in that well and she expired.

In this case, it is not in dispute that the written report was

filed by the complainant Umrao Khan (PW/2) after 20 days of the

occurrence. The marriage of the deceased took place about 10 to

12 years back and the prosecution witnesses omnibusly stated

against the family members of the accused-appellant and this is

also not in dispute that the present accused-appellant, who is

husband of the deceased and all the time, he was away from

house, sometimes he went to foreign for his livelihood sometimes

he went to another place which is far away from where the

deceased was resided. Some letters were produced by the

prosecution and upon perusal of these letters, it reveals that no

averments were written by the deceased which come under the

definition of abetment so also no offence under section 306 IPC is

made out against the accused appellant.

Section 306 IPC reas as under :

“Section 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.”

The Hon’ble Division Bench of this Court in the case of State

of Rajasthan Vs. Ashok Nawal, in D.B. Criminal Appeal

No.136/1994, decided on 18.04.2016 has held as under :

In the trial prosecution had relied upon letters
Ex.P/4 and Ex.P/5 out of letters as evidence so
as to prove the charge of aforesaid allegation
against the respondent. On the contrary, number
of documents Ex.D/1 to D/30, the
communication in between the respondent and
(9 of 14)
[CRLA-195/1994]

his in-laws were exhibited. We have perused all
the communications and find that relations of
deceased and respondent were cordial. There
was no demand of dowry. The document Ex.P/4
and P/5 relied by the prosecution cannot be
treated to be a evidence for demand of dowry
because general talks are stated by the
respondent being son-in-law in the
communication and these documents are of the
year 1985 before 4 years of incident. No other
evidence is on record to prove the allegation of
demand of dowry for which the respondent can
be held guilty.

The Hon’ble Supreme Court in the case of Pawan Kumar Vs.

State of H.P. [AIR 2017 SC 2459] has held as under :

32. The word ‘abetment’ has not been explained
in Section 306 IPC. In this context, the definition
of abetment as provided under Section 107 IPC
is pertinent. Section 306 IPC seeks to punish
those who abet the commission of suicide of
other. Whether the person has abetted the
commission of suicide of another or not is to be
gathered from facts and circumstances of each
case and to be found out by continuous conduct
of the accused, involving his mental element.
Such a requirement can be perceived from the
reading of Section 107 IPC. Section 107 IPC
reads as under:-

“Section 107. Abetment of a thing.–A person
abets the doing of a thing, who–

First. — Instigates any person to do that thing; or
Secondly. –Engages with one or more other
person or persons in any conspiracy for the
doing of that thing, if an act or illegal omission
takes place in pursuance of that conspiracy, and
in order to the doing of that thing; or
Thirdly. — Intentionally aids, by any act or illegal
omission, the doing of that thing.

Explanation 1.–A person who, by wilful
misrepresentation, or by wilful concealment of a
material fact which he is bound to disclose,
voluntarily causes or procures, or attempts to
cause or procure, a thing to be done, is said to
instigate the doing of that thing.

Illustration– A, a public officer, is authorized by
a warrant from a Court of Justice to apprehend
Z. B, knowing that fact and also that C is not Z,
(10 of 14)
[CRLA-195/1994]

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)[18] 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 doing of that
thing. Explanation to Section 107 states that any
wilful misrepresentation or wilful concealment of
material fact which he is bound to disclose, may
also come within the contours of “abetment”. It is
manifest that under all the three situations,
direct involvement of the person or persons
concerned in the commission of offence of suicide
is essential to bring home the offence
under Section 306 IPC.

xxxxx

15. As per clause Firstly in the said section, a
person can be said to have abetted in doing of a
thing, who “instigates” any person to do that
thing. The word “instigate” is not defined in IPC.
The meaning of the said word was considered by
this Court in Ramesh Kumar v. State of
Chhattisgarh[19].”

In the said authority, the learned Judges have
referred to the pronouncement in Ramesh Kumar
v. State of Chhattisgarh.

34. The word “instigate” literally means to goad, urge
forward, provoke, incite or encourage to do an act.
A person is said to instigate another person when
he actively suggests or stimulates him to an act by
(11 of 14)
[CRLA-195/1994]

any means or language, direct or indirect, whether
it takes the form of express solicitation or of hints,
insinuation or encouragement. Instigation may be
in (express) words or may be by (implied)
conduct.

38. In Amalendu Pal alias Jhantu v. State of West
Bengal[22], the Court, after referring to the
authorities in Randhir Singh (supra), Kishori Lal v.
State of M.P.[23] and Kishangiri Mangalgiri
Goswami v. State of Gujarat[24], has held:-
“12. Thus, this Court has consistently taken the
view that before holding an accused guilty of an
offence under Section 306 IPC, the court must
scrupulously examine the facts and circumstances
of the case and also assess the evidence adduced
before it in order to find out whether the cruelty
and harassment meted out to the victim had left
the victim with no other alternative but to put an
end to her life. 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 in terms
of Section 306 IPC is not sustainable.”

The Hon’ble Supreme Court in the case of State of West

Bengal Vs. Orilal Jaiswal Anr. [(1994) 1 SCC 73] has held that

this Court has cautioned that the Court should be extremely

careful in assessing the facts and circumstances of each case and

the evidence adduced in the trail for the purpose of finding

whether the cruelty meted out to the victim had in fact induced

her to end the life by committing suicide. If it appears to the Court

that a victim committing suicide was hypersensitive to ordinary

petulance, discord and difference in domestic life quite common to

the society to which the victim belonged and such

petulance, discord and difference were not expected to induce a
(12 of 14)
[CRLA-195/1994]

similarly circumstanced individual in a given society to commit

suicide, the conscience of the Court should not be satisfied for

basing a finding that the accused charged of abetting the offence

of suicide should be found guilty.

The Hon’ble Supreme Court further in the case of Chitresh

Kumar Chopra v. State (Govt. of NCT of Delhi) 2009 (11) SCALE

24 had an occasion to deal with this aspect of abetment. The

Hon’ble Supreme Court dealt with the dictionary meaning of the

word “instigation” and “goading” and opined that there should be

intention to provoke, incite or encourage the doing of an act by

the latter. Each person’s suicidability pattern is different from the

others. Each person has his own idea of self esteem and self

respect. Therefore, it is impossible to lay down any straight-jacket

formula in dealing with such cases. Each case has to be decided

on the basis of its own facts and circumstances.

Following the aforesaid judgments, the Hon’ble Supreme

Court in the case of Gangula Mohan Reddy (supra) has held as

under :

20 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.

21. The intention of the Legislature and the ratio of the
cases decided by this court is clear that in order to
convict a person under section 306 IPC there has to be
a clear mens rea to commit the offence. It also requires
an active act or direct act which led the deceased to
commit suicide seeing no option and this act must have
been intended to push the deceased into such a
position that he committed suicide.

In the light of the provisions of law and the settled legal
(13 of 14)
[CRLA-195/1994]

positions crystalized by a series of judgments of the Hon’ble

Supreme Court, the conviction of the accused-appellant recorded

under section 306 cannot be sustainable.

So far as the offence under Section 498A IPC is concerned,

according to the perusal of the statements of the prosecution

witnesses, it is apparently came out that the cruelty towards

deceased has been committed by the present accused-appellant.

So offence under section 498A IPC is made out against the

present accused-appellant.

However, taking into account the fact that the incident is of

the year 1990 and near about 27 years have been passed and the

accused-appellant had remained in custody for a substantial

period i.e. more than one month, this Court is of the opinion that

the ends of justice would be met if the substantive sentence of

imprisonment imposed by the trial court is reduced to the period

of imprisonment already undergone by the accused-appellant.

In the result, the appeal filed by the accused-appellant is

partly allowed. The conviction of the accused-appellant recorded

by the learned Additional Sessions Judge Churu Camp at Rajgarh

vide judgment dated 08.04.1994 for offence under Section 306

IPC is set aside and while maintaining the conviction of the

accused-appellant for offence under Section 498-A IPC, the

sentence awarded for the said offence is hereby reduced to the

period already undergone by him. However, the fine of Rs.100/-

imposed by the learned trial court for offence under Section 498A

IPC shall stand increased to Rs. 1,000/-. The amount of fine shall

be deposited in the trial Court within a period of 90 days from the
(14 of 14)
[CRLA-195/1994]

date of this judgment. Upon depositing the amount of fine, the

same shall be disbursed to the complainant. Record of the case be

send back forthwith. The accused-appellant is on bail. His bail

bonds stand discharged.

(MANOJ KUMAR GARG)J.

T.N. Kushwaha/-

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