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Friday, May 26, 2017

categorized eve-teasing into five heads, viz. (1) verbal eve-teasing; (2) physical eve-teasing; (3) psychological harassment; (4) sexual harassment; and (5) harassment through some objects. The present case eminently projects a case of psychological harassment. We are at pains to state that in a civilized society eve-teasing is causing harassment to women in educational institutions, public places, parks, railways stations and other public places which only go to show that requisite sense of respect for women has not been socially cultivated. A woman has her own space as a man has. She enjoys as much equality under Article 14 of the Constitution as a man does. The right to live with dignity as guaranteed under Article 21 of the Constitution cannot be violated by indulging in obnoxious act of eve- teasing. It affects the fundamental concept of gender sensitivity and justice and the rights of a woman under Article 14 of the Constitution. That apart it creates an incurable dent in the right of a woman which she has under Article 15 of the Constitution. One is compelled to think and constrained to deliberate why the women in this country cannot be allowed to live in peace and lead a life that is empowered with a dignity and freedom. It has to be kept in mind that she has a right to life and entitled to love according to her choice. She has an individual choice which has been legally recognized. It has to be socially respected. No one can compel a woman to love. She has the absolute right to reject. 46. In a civilized society male chauvinism has no room. The Constitution of India confers the affirmative rights on women and the said rights are perceptible from Article 15 of the Constitution. When the right is conferred under the Constitution, it has to be understood that there is no condescendation. A man should not put his ego or, for that matter, masculinity on a pedestal and abandon the concept of civility. Egoism must succumb to law. Equality has to be regarded as the summum bonum of the constitutional principle in this context. The instant case portrays the deplorable depravity of the appellant that has led to a heart breaking situation for a young girl who has been compelled to put an end to her life. Therefore, the High Court has absolutely correctly reversed the judgment of acquittal and imposed the sentence. It has appositely exercised the jurisdiction and we concur with the same.

                        IN THE SUPREME COURT OF INDIA

                       CRIMINAL APPELLATE JURISDICTION


                      CRIMINAL APPEAL NO.  775 OF 2017
               (arising out of S.L.P. (Crl) No. 8998 of 2016)


Pawan Kumar                               ...Appellant

                                   Versus

State of H.P.                                  ...Respondent



                               J U D G M E N T


Dipak Misra, J.


      The present appeal, by special leave, depicts the sorrowful  story  of
a young girl, in the middle of her teens, falling in love with the  accused-
appellant and driven by the highest  degree  of  youthful  fixation,  elopes
with him, definitely in complete trust, and after the accused is booked  for
the offences punishable under Sections 363, 366 and 376 of the Indian  Penal
Code (IPC), she stands behind him like  a  colossus  determined  to  support
which consequently leads to his acquittal.  In all  possibility,  she  might
have realized that the accused should not be  punished,  for  she  was  also
equally at fault.  Be that as it may, as per  the  prosecution  version,  he
was extended the benefit of acquittal.
2.    The sad story gets into a 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 used to threaten the girl that he  would  kidnap  her,
and had been constantly teasing her.  It is  the  case  of  the  prosecution
that on 18.07.2008 at 9.00 p.m., appellant came to the  house  of  informant
and threatened him that  he  would  forcibly  take  her.  As  the  narration
further unfolds on 19.07.2008 about 10.00 a.m. when the informant  alongwith
his wife was working outside in the field,   the  deceased  poured  kerosene
oil on her and set herself ablaze which was extinguished by the father,  and
immediately Pradhan of Gram Panchayat was informed.  The  injured  girl  was
taken to the private  hospital  at  Daulatpur  where  she  was  referred  to
Chandigarh for further medical treatment but the informant  could  not  take
her to Chandigarh due to paucity of money and in the evening Pradhan of  the
village visited the house  of  the  informant  and  the  deceased  gave  one
written document to the  Pradhan  stating  that  the  accused-appellant  was
responsible for her condition whereafter police was informed  and  statement
of the informant was recorded and the  victim  was  medically  examined.  On
24.07.2008, the dying declaration of the  girl  was  recorded  by  the  Head
Constable in the presence of Medical Officer and after  the  victim  expired
the post-mortem was conducted and an FIR was registered. After the  criminal
law was set  in  motion,  the  investigating  agency  after  completing  the
investigation laid the charge sheet before the  competent  court  which,  in
turn, committed the case to the Court of Session.
4.    The accused abjured his guilt  and  pleaded  false  implication.   The
prosecution in order to establish the charge  examined  14  witnesses.   The
defence shoes not to examine any witness. The learned Sessions Judge,  after
hearing the arguments, posed the following question:
“Whether the prosecution has successfully proved the  liability  of  accused
under Section 306 of IPC beyond the scope of all reasonable doubts?”;

      and answered the question in the negative and  consequently  acquitted
the accused-appellant vide judgment and order dated 16th July, 2010.
5.    Being aggrieved by the aforesaid judgment,  the  State  preferred  the
appeal before the High Court.  The Division Bench of the High  Court,  after
reappreciating the evidence, reversed the judgment of acquittal rendered  by
the trial court and convicted the accused-appellant under  Section  306  IPC
and sentenced him to suffer rigorous imprisonment for  seven  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  High  Court  should  not  have  interfered  with  the
judgment of acquittal.
8.    Mr. D.K. Thakur, learned Additional  Advocate  General  appearing  for
the respondent-State, in support of the  impugned  judgment,  would  contend
that the High Court has reappreciated the evidence and on  such  reappraisal
has found the  conclusion pertaining to medical condition of the  victim  is
wholly incorrect and accordingly opined that the acquittal recorded  by  the
learned trial Judge is unsupportable and, therefore, this Court should  give
the stamp of approval to the same.
9.    First we shall deal with the nature of  jurisdiction  the  High  Court
exercises when it reverses a judgment of acquittal to that of conviction  in
exercise  of  appellate  jurisdiction.  It  is  put  forth  by  the  learned
Additional Advocate General that the prosecution has been able to  establish
the active role played by  the  accused  by  adducing  cogent  evidence  and
hence, the reversal of the judgment  of  acquittal  by  the  High  Court  is
absolutely flawless.  In  Jadunath  Singh  and  others  v.  State  of  Uttar
Pradesh[1], a three-Judge Bench of this Court has opined:-
“22. This Court has consistently taken the view that in  an  appeal  against
acquittal the High Court has full power to review at large all the  evidence
and to reach the conclusion that upon that evidence the order  of  acquittal
should be reversed. This power of the appellate court in an  appeal  against
acquittal was formulated by the Judicial Committee of the Privy  Council  in
Sheo Swarup v. King Emperor[2] and Nur Mohammad  v.  Emperor[3].  These  two
decisions have been consistently referred to in the judgments of this  Court
as laying down the true scope of the power of an appellate court in  hearing
criminal appeals (see Surajpal Singh v. State[4] and Sanwat Singh  v.  State
of Rajasthan[5]).”

10.   In Shivaji Sahabrao Bobade v. State of Maharashtra[6], the  Court  has
ruled that there are no fetters on the plenary power of the appellate  Court
to review the whole evidence on which the  order  of  acquittal  is  founded
and, indeed, it has a duty to scrutinise the  probative  material  de  novo,
informed, however, by the weighty  thought  that  the  rebuttable  innocence
attributed to the accused having  been  converted  into  an  acquittal,  the
homage the jurisprudence owes to individual liberty  constrains  the  higher
court  not  to  upset  the  finding  without  very  convincing  reasons  and
comprehensive consideration.
11.   In State of Karnataka v. K. Gopalakrishna[7], 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.[8],  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.   In State of Uttar Pradesh v. Ajai Kumar[9], the principles  stated  in
State of Rajasthan v. Sohan Lal[10] were  reiterated.  It  is  worth  noting
that in Sohan Lal (supra), it has been stated thus:-
“3. … This Court has repeatedly laid down that as the first appellate  court
the High Court, even while dealing with an  appeal  against  acquittal,  was
also entitled, and  obliged  as  well,  to  scan  through  and  if  need  be
reappreciate the entire evidence, though while choosing  to  interfere  only
the court should find an absolute assurance of the guilt  on  the  basis  of
the evidence on record and not merely because the High Court could take  one
more possible or a different view only. Except the above, where  the  matter
of the extent and depth of consideration of  the  appeal  is  concerned,  no
distinctions or differences in approach are envisaged  in  dealing  with  an
appeal as such merely because  one  was  against  conviction  or  the  other
against an acquittal.”

14.   In Chandrappa and others v. State of Karnataka[11], this Court  culled
out the general principles regarding powers of  the  appellate  court  while
dealing with an appeal against an order of acquittal.  The  said  principles
are enumerated below:-
“(1)  An  appellate  court  has  full  power  to  review,  reappreciate  and
reconsider the evidence upon which the order of acquittal is founded.
(2) The Code of Criminal Procedure, 1973 puts no limitation, restriction  or
condition on exercise of such power and an appellate court on  the  evidence
before it may reach its own conclusion, both on questions  of  fact  and  of
law.
(3) Various expressions, such  as,  ‘substantial  and  compelling  reasons’,
‘good and  sufficient  grounds’,  ‘very  strong  circumstances’,  ‘distorted
conclusions’,  ‘glaring  mistakes’,  etc.  are  not  intended   to   curtail
extensive powers of an appellate court in an appeal against acquittal.  Such
phraseologies are  more  in  the  nature  of  ‘flourishes  of  language’  to
emphasise the reluctance of an appellate court to interfere  with  acquittal
than to curtail the power of the court to review the evidence  and  to  come
to its own conclusion.
(4) An appellate  court,  however,  must  bear  in  mind  that  in  case  of
acquittal, there is double presumption in favour of  the  accused.  Firstly,
the presumption of innocence is  available  to  him  under  the  fundamental
principle 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 attitude that  a  thousand  guilty
men may go but one innocent martyr shall not  suffer  is  a  false  dilemma.
Only reasonable doubts  belong  to  the  accused.  Otherwise  any  practical
system of justice will  then  break  down  and  lose  credibility  with  the
community. The evil of acquitting a  guilty  person  light  heartedly  as  a
learned Author[12] has sapiently observed, goes much beyond the simple  fact
that just one guilty person has gone  unpunished.  If  unmerited  acquittals
become general, they tend to lead to a cynical disregard  of  the  law,  and
this in turn leads  to  a  public  demand  for  harsher  legal  presumptions
against indicted “persons” and more  severe  punishment  of  those  who  are
found guilty. Thus, too frequent acquittals of the  guilty  may  lead  to  a
ferocious penal law, eventually  eroding  the  judicial  protection  of  the
guiltless. For all these reasons it is true to  say,  with  Viscount  Simon,
that “a miscarriage of justice may arise from the acquittal  of  the  guilty
no less than  from  the  conviction  of  the  innocent  .…”  In  short,  our
jurisprudential enthusiasm for presumed innocence must be moderated  by  the
pragmatic need to make criminal justice potent and realistic.”
                                                         [emphasis supplied]

16.    Keeping  in  view  the  principles  laid  down   in   the   aforesaid
authorities, we shall scan the approach  of  the  learned  trial  Judge  and
scrutinize the correctness of deliberation of the High Court and adjudge  he
ultimate reversal of the judgment of the trial court.
17.   On a careful examination and close study of the judgment of the  trial
court, it is perceivable that the learned  trial  Judge,  after  enumerating
the facts, has analysed the evidence and come to  the  conclusion  that  the
prosecution has failed  to  prove  the  culpability  of  the  accused  under
Section 306 IPC.  He has disbelieved the evidence of  PW-1,  Sukh  Dev,  the
father of the deceased, on the principal ground that though after  acquittal
of the accused in the criminal case instituted for  offence  under  Sections
363/364/376 IPC, teased his daughter, yet he only made an oral complaint  to
the Gram Panchayat and did not file a written  complaint  before  it.   That
apart, the learned trial Judge has noted that though PW-1 had stated in  the
FIR that the accused had threatened to forcibly take away his daughter,   he
had not so stated in his deposition.  The dying declaration,  that  is,  Ex.
PW-10/A, has not been given credence to on the ground that  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 conclusion that  there  is
no specific evidence to record a conviction against the accused.
19.   The High Court, as is noticeable, has taken note of the fact that  PW-
1 has testified that the accused had earlier faced trial  for  the  offences
under Sections 363, 366 and 376 IPC and remained in jail for  eleven  months
and, therefore, he threatened the victim that he  would  again  kidnap  her.
That apart, PW-1, Sukh Dev, father of the deceased, had  also  deposed  that
the accused used to tease her daughter by gestures and his daughter used  to
narrate these facts to him and his wife. He had also  stated  that  that  he
had made an oral complaint to the President of the  Gram  Panchayat,  Bathra
who, in his turn, had admonished the accused   and  told  him  to  mend  his
ways.  The High Court further took note of the fact that  PW-1  has  vividly
described the burn injuries sustained by his daughter  and  the  reason  for
the same.
20.   PW-2, Jai Singh, as his evidence  would  show,  which  has  also  been
taken note of by the High Court, is the  Pradhan  of  the  village.  He  has
testified about the conduct of the accused and  how  he  had  asked  him  to
understand the situation. He has also deposed about the victim  being  taken
to the hospital and the nature of treatment administered to him.   The  High
Court has also dealt with the evidence of PW-3, Dr.  Kulbhushan  Sood,   who
had issued MLC, Ex. PW-3/B and admitted that the  victim  had  suffered  80%
burn injuries and opined that the same is sufficient to  affect  the  mental
capability of the patient.  The High Court has also  analysed  the  evidence
of PW-9, Sawarna Devi, mother of the deceased, who  has  deposed  about  the
whole incident.  PW-10, Dr. Sanjay, on whom the High Court has placed  heavy
reliance, was posted as Senior Resident in  the  Department  of  Surgery  in
RPGMC, Tanda. The police had orally requested him to accompany them  as  the
statement of the victim was to be recorded and 24.07.2008  and  he  went  to
the ward where the victim was and the statement of the injured was  recorded
by the police, Ex. PW-10/A, in  his  presence.   The  High  Court  has  also
appreciated the fact that in the  cross-examination,   treating  doctor  had
admitted that he  had  not  issued  any  certificate  that  the  victim  was
mentally fit to make a statement.  It is pertinent to mention that the  said
witness has denied the suggestion that  the  victim  was  not  fit  to  make
statement and Ex. PW-10/A was not her statement.
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 ofPW-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 was lodged with him and he has told the accused to mend his way.”

And again:-
“PW-13 SI Surjeet Singh has recorded the statement of deceased vide Ext. PW-
10/A on 24.7.2008.  PW-10  Dr.  Sanjay  has  deposed  that  the  police  had
recorded the statement of Shalu in his presence. He attested the  same  vide
endorsement Ext.PW-10/B. Police has written the same  version  in  Ext.  PW-
10/A, which was told by Sahlu. Statement Ext.  PW-10/A  would  constitute  a
dying declaration under Section 32 of the  Evidence  Act.  Merely  that  the
Doctor has not issued certificate that  Shalu  was  fit  to  make  statement
would not in any way affect  the  dying  declaration  made  by  deceased  on
24.07.2008, that too in the presence of PW-10 dr. Sanjay. It is duly  proved
by the prosecution that the  accused  alone  was  responsible  for  abetting
suicide committed by the deceased. She  received  80-85%  superficial  ante-
mortem burns. She might  have  received  80-85%  burns  but  still  she  had
sufficient strength to write Ext. PW-2/A.”

      The High Court has relied on the decision in Gulzari Lal v.  State  of
Haryana[13], and come to hold that a valid dying  declaration  may  be  made
without  obtaining  a  certificate  fitness  of  the  declarant  by  medical
officer.
22.   It is demonstrable that the trial court has acquitted the  accused  by
disregarding the version of parents of the deceased and other witnesses  and
treating the dying declaration  as  invalid  and  the  High  Court,  on  the
contrary, has placed reliance  on  the  testimony  of  the  parents  of  the
deceased, and the evidence of the village Pradhan and  also  given  credence
to the dying declaration.
23.   As is seen, the non-reliance on the dying declaration by  the  learned
trial Judge is founded on  the  reason  that  the  deceased  was  not  in  a
position to speak and there was no medical certificate appended  as  regards
her fitness. That apart, the learned trial  Judge  has  regarded  the  dying
declaration as unacceptable and unreliable on the  base  that  the  deceased
had sustained 80%  burn  injuries.   The  High  Court  has  found  the  said
approach to be absolutely erroneous.
24.   The hub  of the matter is whether the dying  declaration  Ex.  Pw-10/A
is to be treated as realiable or not. To  appreciate  the  validity  of  the
dying declaration,  we  have  requisitioned  the  original  record  and  had
perused the same. On a careful scrutiny of the same, we find that  the  Head
Constable had 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[14]  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 or a police  officer.  When
it is recorded, no oath is necessary nor is the  presence  of  a  Magistrate
absolutely necessary, although to assure authenticity it is usual to call  a
Magistrate, if available for recording the statement of a man about to  die.
There is no requirement of law that a dying declaration must necessarily  be
made to a Magistrate and when such statement is  recorded  by  a  Magistrate
there is no specified statutory form for such recording. Consequently,  what
evidential value or weight has to be attached to such statement  necessarily
depends on the facts and circumstances of  each  particular  case.  What  is
essentially required is that the person  who  records  a  dying  declaration
must be satisfied that the deceased was in a fit state of mind. Where it  is
proved by the testimony of the Magistrate that  the  declarant  was  fit  to
make the statement even without examination by the  doctor  the  declaration
can be acted upon provided  the  court  ultimately  holds  the  same  to  be
voluntary and truthful. A certification by the doctor is essentially a  rule
of  caution  and  therefore  the  voluntary  and  truthful  nature  of   the
declaration can be established otherwise.”

25.   In Atbir v. Government of NCT of Delhi[15],  the Court,  after  noting
earlier  judgments,  has  laid  the  following  guidelines  with  regard  to
admissibility of the dying declaration:-
“22. The analysis of the above decisions clearly shows that:
(i) Dying declaration can be the sole basis of  conviction  if  it  inspires
the full confidence of the court.
 (ii) The court should be satisfied that the deceased was in a fit state  of
mind at the time of making the statement and that it was not the  result  of
tutoring, prompting or imagination.
(iii) Where the  court  is  satisfied  that  the  declaration  is  true  and
voluntary, it can base its conviction without any further corroboration.
(iv) It cannot be laid down as an  absolute  rule  of  law  that  the  dying
declaration  cannot  form  the  sole  basis  of  conviction  unless  it   is
corroborated.  The  rule  requiring  corroboration  is  merely  a  rule   of
prudence.
(v) Where the dying declaration is suspicious, it should not be  acted  upon
without corroborative evidence.
(vi) A dying declaration which suffers from infirmity such as  the  deceased
was unconscious and could never make any statement cannot form the basis  of
conviction.
(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 Singh (PW 7), he was found to  be  mentally  fit  to
give his statement regarding  the  occurrence.  Further,  evidence  of  Head
Constable Manphhol Singh (PW 7) was shown to be  trustworthy  and  has  been
accepted by the courts below. The view taken by  the  High  Court  does  not
suffer from any infirmity and the same is in order.

24. The conviction by the High Court was based not only  on  the  statements
made by Maha Singh (deceased) but also on the unshattered testimony  of  the
eyewitness Dariya Singh (PW 1) and the statement of the independent  witness
Rajinder Singh (PW 11).”


27.   Tested on the anvil of the aforesaid authorities, we find  that  there
is no reason to disregard the dying declaration.  The   Head  Constable  has
recorded it as narrated by the deceased and the deceased  has  also  written
few words about the accused. The same has been recorded in presence  of  the
doctor, PW-10, who had appended his signature.  A certificate of fitness  is
not the requirement of law. The trial court has  been  swayed  away  by  the
burn injuries. It is worthy to note that there cannot be  an  absolute  rule
that a person who has suffered   80%  burn  injuries  cannot  give  a  dying
declaration. In Vijay Pal v. State (Government of  NCT  of  Delhi)[16],  the
Court repelled the submission with regard to dying declaration made  by  the
deceased who had sustained 100% burn injuries stating that:-

“22. Thus, the  law  is  quite  clear  that  if  the  dying  declaration  is
absolutely credible and nothing is brought on record that the  deceased  was
in such a condition, he or she could not have made a dying declaration to  a
witness, there is no justification to  discard  the  same.  In  the  instant
case, PW 1 had immediately rushed to the house of the deceased and  she  had
told him that her husband had poured kerosene on her. The plea taken by  the
appellant that  he  has  been  falsely  implicated  because  his  money  was
deposited with the in-laws and they were not inclined to  return,  does  not
also really breathe the truth, for there  is  even  no  suggestion  to  that
effect.

23. It is contended by the learned counsel for the appellant that  when  the
deceased  sustained  100%  burn  injuries,  she  could  not  have  made  any
statement to her brother. In this regard, we may  profitably  refer  to  the
decision in Mafabhai Nagarbhai Raval v. State of Gujarat[17] wherein it  has
been held that a person suffering 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 he has become a constant  nuisance  for
the victim. In such a situation, the poor parents had no  other  option  but
to make a complaint to the Gram Panchayat.  To hold that their  evidence  is
reproachable as the complaint was not  given  in  writing  manifestation  of
perverse approach.  On a perusal of the evidence in entirety, we  find  that
the testimonies of the parents  are  absolutely  unimpeachable  and  deserve
credence.
30.   The next aspect which is required to be addressed is  whether  Section
306  IPC  gets  attracted.   Submission  of  the  learned  counsel  for  the
appellant is that even assuming the allegation  is  accepted  to  have  been
proved, it would not come within the ambit and scope of Section 306  IPC  as
there is no abetment.
31.   Section  306 IPC reads 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.”

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,
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.

      x          x           x          x          x

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  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.
35.   The word “urge forwards” means to  advise  or  try  hard  to  persuade
somebody to do something, to make a person  to  move  more  quickly  in  the
particular  direction,  specially  by  pushing  or  forcing   such   person.
Therefore, a person instigating another has to “goad” or “urge forward”  the
latter with the intention to provoke, incite or encourage the  doing  of  an
act with a latter.   In order to prove abetment, it must be shown  that  the
accused kept on urging or annoying the deceased by words, taunts  until  the
deceased reacted. A casual remark or something  said  in  routine  or  usual
conversation should not be construed or misunderstood as “abetment”.
36.    Analysing  further,  in  Randhir  Singh  and  another  v.  State   of
Punjab[20], the Court has observed thus:-
“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.”
                                                         [emphasis supplied]

37.   In Praveen Pradhan v. State of Uttaranchal & another[21], 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[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.”

39.   A two-Judge Bench in Netai Dutta v. State of W.B.[25], while  dwelling
the concept of abetment under Section 107 IPC especially in the  context  of
suicide note, observed:-
“6. In the suicide note, except referring to the name of  the  appellant  at
two places, there is no reference  of  any  act  or  incidence  whereby  the
appellant herein is alleged to have committed any wilful act or omission  or
intentionally  aided  or  instigated  the  deceased  Pranab  Kumar  Nag   in
committing the act of suicide. There is  no  case  that  the  appellant  has
played any part or any role in any conspiracy, which  ultimately  instigated
or resulted in the commission of suicide by deceased Pranab Kumar Nag.

7. Apart from  the  suicide  note,  there  is  no  allegation  made  by  the
complainant that the appellant herein in any way was harassing his  brother,
Pranab Kumar Nag. The case registered against the appellant is  without  any
factual foundation. The contents of the alleged suicide note do not  in  any
way make out the offence against the appellant.  The  prosecution  initiated
against  the  appellant  would  only  result  in  sheer  harassment  to  the
appellant without any fruitful result. In our opinion,  the  learned  Single
Judge seriously erred in holding that the first information  report  against
the appellant disclosed the elements of  a  cognizable  offence.  There  was
absolutely no ground to proceed against the appellant herein. We  find  that
this is a fit case where the extraordinary power under Section  482  of  the
Code of  Criminal  Procedure  is  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), where the accused by  his  acts  or
by a continued  course  of  conduct  creates  such  circumstances  that  the
deceased was left  with  no  other  option  except  to  commit  suicide,  an
“instigation” may be inferred. In other words, in order to  prove  that  the
accused abetted commission of suicide by a person, it has to be  established
that:
(i) the accused kept on irritating or annoying the deceased by words,  deeds
or wilful omission or conduct which may even be a wilful silence  until  the
deceased reacted or pushed or forced the deceased by  his  deeds,  words  or
wilful omission or conduct to make the deceased move  forward  more  quickly
in a forward direction; and
(ii) that the accused had the intention to provoke, urge  or  encourage  the
deceased  to  commit  suicide  while  acting  in  the  manner  noted  above.
Undoubtedly,  presence  of  mens  rea  is  the  necessary   concomitant   of
instigation.”

This Court again observed:-
“20. … The question as to what is  the  cause  of  a  suicide  has  no  easy
answers because  suicidal  ideation  and  behaviours  in  human  beings  are
complex and multifaceted. Different individuals in the same situation  react
and behave differently because of the personal  meaning  they  add  to  each
event,  thus  accounting  for  individual  vulnerability  to  suicide.  Each
individual’s  suicidability  pattern  depends  on   his   inner   subjective
experience of mental pain, fear and loss  of  self-respect.  Each  of  these
factors  are  crucial  and  exacerbating  contributor  to  an   individual’s
vulnerability to end his own life, which may either be an attempt for  self-
protection or an escapism from intolerable self.”

41.   Keeping in view the aforesaid  legal  position,  we  are  required  to
address whether there  has  been  abetment  in  committing  suicide.  Be  it
clearly stated that mere  allegation  of  harassment  without  any  positive
action in proximity to the time of occurrence on the  part  of  the  accused
that led a person to commit suicide, a conviction in terms  of  Section  307
IPC is not sustainable.  A casual remark that is likely to cause  harassment
in  ordinary  course  of  things  will  not  come  within  the  purview   of
instigation.  A mere reprimand or a word in a fit of  anger  will  not  earn
the status of abetment. There has to  be  positive  action  that  creates  a
situation for the victim to put an end to life.
42.   In the  instant  case,  the  accused  had  by  his  acts  and  by  his
continuous course of 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 her had become  intolerable  and  unbearable.
The father had deposed that the girl had told him  on  number  of  occasions
and he had complained to the Pradhan.   All  these  amount  to  active  part
played by the accused.  It is not a situation where a person is insulted  on
being asked to pay back a loan. It is not a situation  where  someone  feels
humiliated on a singular act.  It is a different situation altogether.   The
young girl living in a village was threatened and  teased  constantly.   She
could not bear it any longer.  There is evidence that the parents belong  to
the poor strata of the society. As the materials on  record  would  reflect,
the father  could not afford her treatment when case  of  his  daughter  was
referred to the hospital at Chandigarh.  The impecuniosity of the family  is
manifest.  It is clearly evident from the materials brought on  record  that
the conduct of the accused was absolutely proactive.
45.   Eve-teasing, as has been stated in Deputy Inspector General of  Police
and another v. S.  Samuthiram[26],  has  become  a  pernicious,  horrid  and
disgusting practice. The Court therein has referred to  the  Indian  Journal
of  Criminology  and  Criminalistics  (January-June  1995  Edn.)  which  has
categorized eve-teasing into five heads, viz. (1)  verbal  eve-teasing;  (2)
physical eve-teasing; (3) psychological harassment; (4)  sexual  harassment;
and (5)  harassment  through  some  objects.   The  present  case  eminently
projects a case of psychological harassment. We are at pains to  state  that
in a civilized  society  eve-teasing  is  causing  harassment  to  women  in
educational institutions, public places, parks, railways stations and  other
public places which only go to show that  requisite  sense  of  respect  for
women has not been socially cultivated.  A woman has her own space as a  man
has. She enjoys as much equality under Article 14 of the Constitution  as  a
man does. The right to live with dignity as guaranteed under Article  21  of
the Constitution cannot be violated by indulging in obnoxious  act  of  eve-
teasing.  It affects the  fundamental  concept  of  gender  sensitivity  and
justice and the rights of a woman under  Article  14  of  the  Constitution.
That apart it creates an incurable dent in the right of a  woman  which  she
has under Article 15 of the Constitution. One  is  compelled  to  think  and
constrained to deliberate why the women in this country  cannot  be  allowed
to live in peace and lead a life  that  is  empowered  with  a  dignity  and
freedom. It has to be kept in  mind  that  she  has  a  right  to  life  and
entitled to love according to her  choice.  She  has  an  individual  choice
which has been legally recognized.  It has to be socially respected. No  one
can compel a woman to love. She has the absolute right to reject.
46.   In a civilized society male chauvinism has no room.  The  Constitution
of India confers the affirmative rights on women and  the  said  rights  are
perceptible from  Article  15  of  the  Constitution.   When  the  right  is
conferred under the Constitution, it has to be understood that there  is  no
condescendation. A  man  should  not  put  his  ego  or,  for  that  matter,
masculinity on a pedestal and abandon the concept of civility.  Egoism  must
succumb to law.  Equality has to be regarded as  the  summum  bonum  of  the
constitutional principle in this context.  The  instant  case  portrays  the
deplorable depravity of the appellant that  has  led  to  a  heart  breaking
situation for a young girl who has been compelled  to  put  an  end  to  her
life. Therefore, the  High  Court  has  absolutely  correctly  reversed  the
judgment of acquittal and imposed the sentence. It has appositely  exercised
the jurisdiction and we concur with the same.
47.    Consequently,  the  appeal,  being  devoid  of  any   merit,   stands
dismissed.


                              ............................................J.
                                           [Dipak Misra]




                                       …………...............................J.
                                        [A.M. Khanwilkar]




                                    ………...................................J.
                                 [Mohan M. Shantanagoudar]

New Delhi
April 28, 2017.
-----------------------
[1]    (1971) 3 SCC 577
[2]    AIR 1934 PC 227
[3]    AIR 1945 PC 151
[4]    AIR 1952 SC 52
[5]    AIR 1961 SC 715
[6]    (1973) 2 SCC 793
[7]    (2005) 9 SCC 291
[8]    (2007) 7 SCC 625
[9]    (2008) 3 SCC 351
[10]   (2004) 5 SCC 573
[11]   (2007) 4 SCC 415
[12]   Glanville Williams in ‘Proof of Guilt’.
[13]   (2016) 4 SCC 583
[14]    (2002) 6 SCC 710
[15]   (2010) 9 SCC 1
[16]   (2015) 4 SCC 749
[17]   (1992) 4 SCC 69
[18]   (2009) 16 SCC 605
[19]   (2001) 9 SCC 618
[20]   (2004) 13 SCC 129
[21]   (2012) 9 SCC 734
[22]   (2010) 1 SCC 707
[23]   (2007) 10 SCC 797
[24]   (2009) 4 SCC 52
[25]   (2005) 2 SCC 659
[26]   (2013) 1 SCC 598

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