HIGH COURT OF JUDICATURE AT ALLAHABAD
Reserved on 3.12.2019
Delivered on 20.12.2019
Case :- CRIMINAL APPEAL No. – 1836 of 2004
Appellant :- Yogendra Singh
Respondent :- State of U.P.
Counsel for Appellant :- Ajaz Ahmad,Akhilesh Singh,R.K. Tewari,Shivam Yadav
Counsel for Respondent :- Govt. Advocate
1. Heard Shri Shivam Yadav and Shri Akhilesh Singh, learned counsels for the appellant and Shri S.S. Tripathi, learned A.G.A. for the State.
2. This criminal appeal is directed against the judgement and order dated 20.3.2004 passed by Special Judge (S.C./S.T. ) Jalaun at Orai, in S.T. No. 217 of 1996 (State Vs. Yogendra Singh) under Sectionsections 354,Section306 I.P.C. and Sectionsection 3(1) (10) of S.C./SectionS.T. Act convicting the appellant for the offence under Sectionsection 354 I.P.C. by rigorous imprisonment for six months and under Sectionsection 306 I.P.C. by rigorous imprisonment of three years with fine of Rs. 2,000/-.In default of payment of fine, appellant to undergo three months further rigorous imprisonment. Both the sentences are to run concurrently.
3. The prosecution case in brief is that the appellant resides in vicinity of house of the informant. He had affair with his minor daughter, Km. Kusum, aged about sixteen years, for which he had scolded her many times. On 24.7.1993 at 2 P.M. his daughter had gone to the place in house where goats were tied. From the roof the appellant jumped inside the place and caught hold of his daughter. On suspicion informant and his wife, Badi Bahu @ Beena went to the place and saw that the appellant was holding Km. Kusum with wrong intentions. They caught the appellant on the spot, who abused them and threatened them that they should leave him otherwise he will kill them. The First Information Report regarding the aforesaid incident was lodged on 24.7.1993 at 12.45 P.M. under Sectionsections 354, Section504, Section506, Section306 I.P.C. and Sectionsection 3(1) (10) of S.C./SectionS.T. Act. On the same day at 4.15.P.M. the informant gave another application before the police station that his daughter, Km. Kusum, has poured kerosene oil over herself and put herself on fire due to shame caused by holding of her hands by the appellant.
4. The investigation was completed by the investigating officer and he submitted charge sheet . Thereafter trial court framed charges against the appellant under Sectionsections 354, Section504, Section306,Section506 I.P.C. and Sectionsection 3 (1) (10) of S.C./SectionS.T. Act.
5. The statement of P.W.1, Krishna Prasad, who was scribe of the application given at police station was recorded by the court below. He testified that on the date of the incident he wrote application on the dictation of the informant. He proved the application and the fact that informant put his signature thereon.
6. P.W.2,Basorey,father of the deceased and informant repeated the allegations made in the First Information Report and P.W.3, wife of the informant and mother of the deceased, also stated accordingly. She stated that when the appellant caught hold of her daughter with bad intention, her daughter raised alarm and then she went to the place of occurrence. The formal witnesses, investigating officer and doctor, proved their documentary evidences on record.
7. The trial court found that appellant tried to outrage the modesty of the victim and she committed suicide being ashamed and feeling guilty of offence committed by the appellant. Hence this appeal.
8. Learned counsel for the appellant has submitted that there was love affair between appellant and deceased. The informant has admitted that earlier also she was scolded by her parents. Since she was seen in compromising position with the appellant, she committed suicide on her own. The witnesses of fact are the father and mother of the deceased. No offence under Section 306 I.P.C, is made out since ingredients required for abetement of suicide were not proved by the prosecution. He has further submitted that offence under Sectionsection 354 I.P.C. is also not made out as there was no evidence on record to prove that appellant outraged modesty of the deceased by disrobing her. The only allegation is that appellant was holding her. It was by consent He has submitted that appellant deserves to be acquitted of the charges in this case.
9. In support of his contention he has relied upon the judgement of Apex court in GurCharan Singh Vs. State of Punjab, (2017)1 SCC 433.
10. Per contra, learned A.G.A has submitted that death of the deceased was caused on account of the offence committed by the appellant against her. His conduct compelled her to commit suicide as she was found in the company of the appellant and it is resulted into guilt and shame and consequently deceased committed suicide.There was no other reason for her to commit suicide. He has stated that court below has rightly convicted and sentenced the appellant. The order of the court below does not suffers from any error and deserves to be confirmed.
11. After considering the rival contentions this court finds that the arguments of the learned counsel for the appellant that ingredients of Sectionsection 306 I.P.C. are not made out from the material on record deserves consideration first. There is no direct evidence of abetement of suicide by the appellant which led to the suicide by the deceased. The Apex Court in paragraphs 27,28,and 29 of the case of Gurcharan Singh (Supra) has held as follows:-
“27. The pith and purport of Section 306 IPC has since been enunciated by this Court in SectionRandhir Singh vs. State of Punjab, (2004)13 SCC 129, and the relevant excerpts therefrom are set out hereunder.
“12. Abetment involves a mental process of instigating a person or intentionally aiding that person in doing of a thing. In cases of conspiracy also it would involve that mental process of entering into conspiracy for the doing of that thing. More active role which can be described as instigating or aiding the doing of a thing is required before a person can be said to be abetting the commission of offence under Section 306 IPC.
13. In State of W.B. Vs. Orilal Jaiswal (1994) 1 SCC 73, this Court has observed that the courts should be extremely careful in assessing the facts and circumstances of each case and the evidence adduced in the trial 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 transpires to the court that a victim committing suicide was hypersensitive to ordinary petulance, discord and differences in 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 should not be satisfied for basing a finding that the accused charged of abetting the offence of suicide should be found guilty.”
28. Significantly, this Court underlined by referring to its earlier pronouncement in Orilal Jaiswal (supra) that courts have to be extremely careful in assessing the facts and circumstances of each case to ascertain as to whether cruelty had been meted out to the victim and that the same had induced the person to end his/her life by committing suicide, with the caveat that if the victim committing suicide appears to be hypersensitive to ordinary petulance, discord and differences in domestic life, quite common to the society to which he or she belonged and such factors were not expected to induce a similarly circumstanced individual to resort to such step, the accused charged with abetment could not be held guilty. The above view was reiterated in SectionAmalendu Pal V. State of West Bengal (2010) 1 SCC 707.
29. That the intention of the legislature is that in order to convict a person under Section 306 IPC, there has to be a clear mens rea to commit an offence and that there ought to be an active or direct act leading the deceased to commit suicide, being left with no option, had been propounded by this Court in SectionS.S. Chheena v. Vijay Kumar Mahajan (2010) 12 SCC 190.”
12. In the above decision of the Apex Court the ingredients for constituting the offence under Sectionsection 306 I.P.C. stated are missing in the present case. Prosecution has not proved that the appellant instigated the victim to commit suicide. There was no mens rea to commit the offence on the part of the appellant proved on record. It appears that on account of scolding or beating of the deceased by her family members or on account of her mental torture by them she committed suicide in the tender age. Had her family members been cool and considerate in dealing with her, her life may have been saved. Therefore, conviction of the appellant for the offence under Sectionsection 306 I.P.C. is not correct. Regarding the arguments of the learned counsel for the appellant that offence under Sectionsection 354 I.P.C. is also not made out against the appellant , on the assessment of evidence on record this Court, finds that victim was sixteen years old minor girl and appellant was caught catching her with bad intention in her own house and earlier he was also found to be stalking the deceased. Therefore the offence under Sectionsection 354 I.P.C. stands proved against the appellant. The submission of the learned counsel for the appellant is that there was affair between the two and therefore offence under Sectionsection 354 I.P.C. is not made out, does not appears to be correct. There is clear allegation against the appellant that he was following the deceased for long time, therefore, conviction and sentence of the appellant for the offence under Sectionsection 354 I.P.C. is upheld.
13. The appellant is absolved of charge under Sectionsection 306 I.P.C. but his conviction and sentence under Sectionsection 354 I.P.C. is upheld. The appellant is on bail. He is directed to surrender and undergo remaining sentence under section 354 I.P.C.
14. The office is directed to send the record of the court below within two weeks from today alongwith copy of this judgement for compliance.
15. The appeal is partly allowed.
Order Date :- 20.12.2019
Atul kr. Sri.