1. The incident has occurred on 21/10/2005. In the incident Parulben had committed suicide at her home. The complainant is the father of the deceased. The story of the prosecution is that the deceased was in love with one Raju @ Rajnikant Govindbhai Rohit. On the previous day to the date of incident, Raju has refused to marry the deceased and as per say of the prosecution, this had led the deceased to commit suiside.
2. The prosecution has examined following Nine witnesses:-
P.W.1 Ex-7 Ishwarbhai Shanabhai Nai Complainant – father of the deceased.
P.W.2 Ex-10 Jayaben Ishwarbhai Nai Mother of the deceased.
P.W.3 Ex-11 Praveenaben Ishwarbhai Nai Sister of the deceased.
P.W.4 Ex-15 Dahyabhai Chaturbhai Harijan Sarpanch of Bhayli village.
P.W.5 Ex-17 Dinkarbhai Anandrao Patil Panch Witness- Scene of offence.
P.W.6 Ex-19 Dr. Ashok Krishnalal Mahajan Dr. conducting Autopsy
P.W.7 Ex-21 Rasiklal Narayanbhai Guna Hand-writing expert.
P.W.8 Ex-25 Naginbhai Devjibhai Vasawa Investigating Officer
P.W.9 Ex-27 Kantibhai Naginbhai, A.S.I. & I.O.
3. The prosecution has produced following material documents:-
Ex-9 Suicide Note Ex-10 Complaint Ex-13 Inquest Panchnama Ex-14 Report for P.M.
Ex-18 Panchnama of Scene of offence Ex-20 P.M. Report Ex-23 Hand-writing expert’s opinion
4. On considering the evidence on record and submissions made by the learned advocates for the parties, the learned Trial Court was pleased to acquit the accused for the offence punishable u/s.306 of the IPC. The learned Trial Court has recorded following reasons in support of its order - (i) FIR is delayed one; (ii) Initially, the incident was recorded as an accidental death and statements are recorded by the police in pursuance of that inquiry; (iii) The complainant, his wife and sister of the deceased – none of have made any statement involving the present accused, in their statement recorded by the police in pursuant to that inquiry; (iv) That material statement, that had said to led the deceased to commit suicide, namely meeting of deceased and accused on day previous to day of incident and refusal by accused to marry – which has been made by the complainant before the Court, has not been made by the complainant either in his FIR or in his statement recorded by the police in pursuant to the accidental death inquiry; (v) That the conduct of the mother of the deceased is “mysterious”. It is so because the mother of the deceased has wasted the time at the time of incident in not taking steps to open the door of kitchen at the earliest, wherein, the deceased has committed suicide;
(vi) That the suicide note is not reliable nor the contents of the suicide note is in nature of inspiring confidence; (vii) Referring and relying upon the decision in case of (i) Sanju Vs. Statement of M.P. reported in AIR 2002 SC 1998 and (ii) Shivdan Ram Vs. State of Rajasthan reported in 2005 Cr.L.J. 36, the Court has recorded the conclusion as referred above.
5. Heard Mr.BK Raj learned advocate appearing on behalf of applicant-original complainant. Learned advocate for the applicant submitted that the learned trial court has committed serious error in acquitting the accused. It was submitted that all the material witnesses have supported the case of the prosecution and none has turned hostile. This ought to have been weighed with the learned trial court instead of that this material is brushed aside by the learned trial court. It was submitted that the learned trial court has seriously erred in basing the conclusion also on the fact that the FIR is delayed one and in the facts and circumstances of the prosecution case, the FIR is not delayed one. It was pointed out that the suicide note is found by the police during the course of investigation and it is material document linking the accused with the offence. The learned trial court ought to have taken into consideration the suicide note in right perspective. That the learned trial court has seriously erred in appreciating the suicide note. In the opinion of the learned advocate for the applicant, the judgment is not based on evidence and learned trial court has not given sufficient reason in support of its conclusion.
6. Learned advocate for the applicant Mr. BK Raj in support of his submission, read the evidence of material witnesses.
7. Ms. Jirga Jhaveri learned APP appears on behalf of State.
8. Ms. Shailee Kapadia learned advocate for Mr. Arpit Kapadia learned advocate for the original accused, supported the judgment of the trial court.
9. In order to bring home the charge u/s.306 of the IPC, the prosecution has to show and establish that there is a abatement on the part of the accused. Abatement is not defined u/s.306 of the IPC. It is defined u/s.107 of the IPC. As per Sec.107, the person can be said to have abated of doing thing if an act or illegal omission takes place.
“Sec.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.
10. Thus, the prosecution has to show and establish in any given case that the accused has abated in commission of suicide in any of three modes stated in Sec.107.
11. In order to appreciate the submission made material on record may be briefly referred. The father, mother and younger sister of the deceased are material witnesses. They are prosecution witnesses nos.1, 2 and 3 respectively. It appears from the evidence that the accused was residing nearby home of the complainant family. It is the say of these witnesses that the accused and deceased were in love. Earlier on 28/09/2005, the accused has said to have taken away the deceased to village Bhayali. It reveals that there, the accused has refused to marry the deceased. The deceased, feeling hurt on that count, had tried to commit suicide by jumping into the pond. However, the Sarpanch of Bhayali village intervened and had persuaded successfully the deceased. It is also alleged that at that time, after intervention of the Sarpanch, the accused had agreed to marry with the deceased. Thereafter, the deceased came at her father’s house. Then on 20/10/2005, the accused had visited the complainant’s home and refused to marry the deceased. The sister of the deceased says that the deceased thereafter was in tense mood and was not talking with anyone. On next day i.e. 21/10/2005 after pouring kerosene over her, she committed suicide.
12. In addition to the say of material witnesses on the above line, the prosecution has relied on the suicide note. It is found by the police during the investigation. The suicide note was found from the school beg of the deceased. The police has recovered the same after duly prepared the panchnama. Then the suicide note was sent to the FSL and the expert opinion was obtained. The head of department of “document and photograph” of FSL, Gandhinagar is examined at Exh.21. His opinion at Exh.23. He concluded as under:-
“The red-encircled disputed writings and signature marked “A” and “A/1” are written by the writer of natural writings marked B, BB, BB/1, BB/2, B1 to B4 and B/1 to B/4.”
Thus, as per the expert’s opinion, writing in suicide note, is in hand-writing of the deceased. The suicide note at Exh.9 reads, thus : “I am madly in love. That on 28.9.2005, I absconded from the house and had gone with the accused as the accused has lured me by giving promise to marry. That he coaxed and seduced me and took me to Bhaili Bus Stand, (he) refuses to accept me. At that time, in the presence of 50 to 100 village people and in presence of father, village Sarpanch, I attempted to commit suicide by jumping into the pond. However, Sarpanch had intervened. If now I commit suicide, my sister and parents are not responsible, for the same. I am committing suicide because of refusal to accept me, and Raju @ Rajnikant Govindbhai Rohit is responsible for that. I request you Sir – to take action as strict as possible against this person so that (he) may never take such steps and lure and seduce simple straightforward and innocent girl like me.”
13. Much emphasis was placed by the learned advocate for the applicant on the suicide note. It was submitted that the say of the prosecution is supported also by the Sarpanch, who is independent witness.
13.1 It is not possible to agree with the learned advocate for the applicant. The learned trial court has rightly held that suicide note is not in nature of inspiring confidence. The assertion in suicide note is somewhat unreal. It is the say of the deceased that she was ‘madly in love’ with the accused. If deceased was really in love, she would not have committed suicide – her faith in her love would have restrained her from taking refusal of accused to marry, in literal sense. Further, the person in love would not express oneself by urging that the action as strong as possible should be taken against his or her beloved. Love never demand, it only gives. It is certainly doubtful that language of nature used in the suicide note would ever be used by one for the person with whom one claimed to be in love. The learned trial court has rightly raised the doubt about genuineness of the suicide note.
14. It is true that expert opinion on the suicide note is in favour of the prosecution. However, it may be bear in mind that the learned trial court has pointed out that prosecution has produced on record xerox copy of the original and not the original and further, the natural writing of the deceased is not produced on record. This aspect weakens the opinion of the expert. Even otherwise, the suicide note by itself does not carry the case any further. On the basis of suicide note, it cannot be said that accused has instigated or has intentionally aided or has conspired, so that deceased may commit the suicide. Malice or evil in the mind of accused, which loosely in legal term, can be said “mens rea” of nature that led the sufferer/ victim to commit suicide ought to be brought on record.
No such circumstances in this case. If one is very sensitive and sentimental and commit an act in pursuance of his or her such temperament, then liability of his or her such act cannot be fasten upon the other person. In the present case, it is the say of the prosecution that about one month prior to the date of incident, the accused has refused to marry the deceased and later on, he has agreed to marry her. One month has passed thereafter. In the circumstances, saying of ‘No’ ought not to have been taken so seriously by her. Further, the complainant in his cross-examination says that, ‘he said to the accused that he would get married his daughter when she becomes of age of 18 years.’ This assurance was given by the complainant to the accused. In the circumstances of the case, suicide note is not possible to read in favour of the prosecution.
15. It was also submitted by learned advocate for the applicant that it is difficult to bring on record instigation and abatement in such type of cases. That the circumstances of the case ought to be bear in mind by the Court, and also the situation of the given case. The consequences flowing from the act ought to be considered by the Court. This submission, considered in abstract has substance. It can be said that statutorily prescribed test, to test abatement may remain as “showpiece” or “elusive ideal” inasmuch as abatement may not be apparent or glaring in a given case or in most of the cases – to be precise, if the Court does not come forward to consider the circumstances or see the situations. But, such surrounding circumstances or culpable instances or harrowing situation that is sought to be relied upon by the prosecution, ought to have been brought on record in the form of evidence of material witnesses. It is true that there will not be direct evidence as to “instigation” or “abatement”. In all such cases, then, much depends on the oral evidence of material witnesses. How else one would know the circumstances and situation of a given case? It is only upon the reading of the evidence of material witnesses, one would be in a position to conclude that circumstance, does suggest that it is the act on the part of the accused, which is in the nature of instigation or can be termed as aiding intentionally the deceased to commit suicide. In other-words, essential of Section-
107 – may be in the form circumstance and situation, -
ought to flow from the evidence of material witnesses, - unless typical facts of given case speaks for itself. For instance, in recent case of ‘Amitkapoor’ – 2012 (9) SCC 460, facts and situation were like of that nature.
16. Beside suicide note, circumstances or situations that can be read as instigating or intentionally aiding the victim to commit suicide is not possible gather – as referred above, - from the evidence of material witnesses.
17. In view of the above, in the present case, it is not possible to say that the accused has abated in committing of suicide as contemplated u/s.306 of the IPC. It may be stated that Mr. BK Raj, learned advocate for the applicant is right in submission so far as delay in lodging of FIR is concerned, case of prosecution ought not to be rejected on the ground of delayed FIR. However, other circumstances referred above including the circumstance that in a statement recorded by the police in inquiry held in pursuance of accidental death entry, initially, registered on occurrence of incident, none of the material witnesses had alleged against the present accused- are in favour of the accused.
18. At the time of hearing, Ms. Kapadia, learned advocate for the respondent no.2 has placed on record “status of the case”. On the basis of it, it was submitted that the State has not preferred appeal against the judgment and order of acquittal passed by the learned trial court.
19. In view of the above, the revision application is dismissed. The order dated 08/06/2007 passed by the learned trial court, Vadodara in Sessions Case No.123/2006 is hereby confirmed.
Record and proceedings be sent back. Rule is discharged.
(R.D.KOTHARI, J.)
aruna