Point of Law: Court has considered the scope of Section 306 and the ingredients which are essential for abetment as set out in Section 107 IPC. While interpreting the word “instigation.”

JUDGMENT :

K. SURENDER, J.

1. The appeal is filed aggrieved by the conviction under Section 306 of IPC and sentenced to undergo rigorous imprisonment for a period of seven years and to pay fine of Rs. 5,000/- in default, to suffer simple imprisonment for a period of six months, by Judgment dated 04.03.2020 in S.C. No. 503 of 2017 passed by the II Additional Metropolitan Sessions Judge at Hyderabad (for short ‘the Sessions Judge’).

2. The case of the prosecution is that on 23.06.2015, the deceased, who is the wife of the appellant/accused was admitted to the ‘Burns Ward’ in Osmania General Hospital. Statement of the deceased was recorded by PW-9 sub-inspector initially, wherein she stated that the appellant/accused, who is her husband used to consume ganja and beat her and also threatens to kill her. For the said reason, she poured kerosene on herself and set ablaze due to the said harassment. On the basis of the said complaint, the First Information Report was registered as ‘Woman Burns” vide Cr. No. 138 of 2015 of P.S. Kanchanbagh, Hyderabad on 24.06.2015. During the course of her treatment, she died on 27.06.2015 and for the reason of her death, the section of law was altered to Section 306 of IPC on 01.07.2015.

3. During the course of her treatment, the deceased was also examined by the XVII Additional Chief Metropolitan Magistrate, Hyderabad examined as PW-6. During the course of her statement, she stated that the appellant used to beat her and when she stated that she was going to set fire to herself, the appellant/husband encouraged and then she set fire to herself. Hearing her cries, neighbours and the husband poured water on her and took her to the Osmania General Hospital.

4. The learned II Additional Metropolitan Sessions Judge, Hyderabad, having recorded the evidence of PWs. 1 to 11 and having marked Exs.P1 to P11, convicted the appellant/accused under Section 306 of IPC for abetting his wife to commit suicide.

5. The learned counsel for the appellant/accused argued that there cannot be any abetment of the offence for committing suicide as the deceased herself threatened to commit suicide for not taking her to her parents’ house as per the statement made to PW-9. When she set herself ablaze before the appellant, he poured water on her and took her to the hospital. The two dying declarations under Exs.P6 and P9 cannot be considered for the reason of the said statements being recorded on 24.06.2015, whereas, the deceased died three days thereafter i.e. on 27.06.2015, for which reason, the statements made under Exs.P6 and P9 cannot be treated as dying declarations and make them basis for conviction. Further, the trial court failed to examine any Doctor or duty Doctor to speak about the mental and health condition of the deceased to make any statement and lastly none of the witnesses supported the case of the prosecution and the mother of the deceased stated that because of tutoring by her husband, the victim/deceased had stated about harassment in the statements made under Exs.P6 and P9 and the deceased was angry woman. The trial Court could not have based conviction on the statements made by the deceased as they were not subjected to cross-examination and there is no other corroborating evidence as far as the statements made under Exs.P6 and P9 are concerned.

6. On the other hand, learned Assistant Public Prosecutor while supporting the finding of the trial court, argued that there is no necessity of any corroboration for the statements made under Exs.P6 and P9, since they were made regarding her death immediately after she was joined with severe burn injuries. It cannot be said that they do not fall within the category of dying declaration under Section 32 of the Indian Evidence Act. There is no necessity for any corroboration when the dying declarations are reliable and only on the basis of the dying declarations under Exs.P6 and P9 conviction can be recorded as rightly done by the learned Sessions Judge.

7. The basis for c