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REPORTABLE   

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

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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.

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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

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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.  

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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

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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

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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 Pradesh1,

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  Emperor2 and  Nur  Mohammad v.  Emperor3. 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.  State4 and  Sanwat  Singh  v.  State  of Rajasthan5).”

10. In  Shivaji  Sahabrao  Bobade  v.  State  of

Maharashtra6, 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

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

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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. Gopalakrishna7, 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

7 (2005) 9 SCC 291 8 (2007) 7 SCC 625

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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  Kumar9,  the

principles  stated  in  State  of  Rajasthan v.  Sohan Lal10

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.”

9 (2008) 3 SCC 351 10 (2004) 5 SCC 573

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14. In Chandrappa and others v. State of Karnataka11,

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

11 (2007) 4 SCC 415

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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 Author12 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

12 Glanville Williams in ‘Proof of Guilt’.

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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

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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

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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

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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

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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

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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.”

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The High Court has relied on the decision in Gulzari

Lal v. State of Haryana13, 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.  

13 (2016) 4 SCC 583

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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

Maharashtra14 would  be  absolutely  seemly.   In  the  said

case, the larger Bench, while stating the  law relating to the

dying declaration, has succinctly held:-  

14  (2002) 6 SCC 710

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“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 Delhi15,  the Court,

after  noting  earlier  judgments,  has  laid  the  following

15 (2010) 9 SCC 1

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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

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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

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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

16 (2015) 4 SCC 749

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may profitably refer to the decision in  Mafabhai Nagarbhai Raval v.  State of Gujarat17 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 17 (1992) 4 SCC 69

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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

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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

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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

18 (2009) 16 SCC 605

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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 Chhattisgarh19.”  

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 19 (2001) 9 SCC 618

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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 Punjab20, 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  &

another21, 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

20 (2004) 13 SCC 129 21 (2012) 9 SCC 734

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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

Bengal22,  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  Gujarat24,

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

22 (2010) 1 SCC 707 23 (2007) 10 SCC 797 24 (2009) 4 SCC 52

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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

25 (2005) 2 SCC 659

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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:

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(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

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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.  

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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.

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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. Samuthiram26, 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

26 (2013) 1 SCC 598

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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

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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.

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