Himachal Pradesh High Court
Reserved On: 10.09.2024 vs Kuldeep Singh on 17 September, 2024
Bench: Tarlok Singh Chauhan, Sushil Kukreja
1 Neutral Citation No. ( 2024:HHC:8635 ) IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA Cr. Appeal No. 175 of 2014 Reserved on: 10.09.2024 Decided on: 17.09.2024 ____________________________________________________ State of Himachal Pradesh .....Appellant.
.
Versus
Kuldeep Singh ......Respondent.
_____________________________________________________ Coram The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge. The Hon'ble Mr. Justice Sushil Kukreja, Judge.
1Whether approved for reporting? Yes.
_____________________________________________________ For the appellant: Mr. Y.W. Chauhan, Sr. Additional Advocate General, with Ms. Sharmila Patial, Mr. Navlesh Verma, Additional Advocates General, and Mr. Raj Negi, Deputy Advocate General.
For the respondent: Mr. N.K. Thakur, Sr. Advocate, with Mr. Divya Raj Singh, Advocate.
Sushil Kukreja, Judge.
The instant appeal has been preferred by the appellant/State under Section 378 of the Code of Criminal Procedure against the judgment, dated 10.12.2013, passed by learned Additional Sessions Judge-II, Una, District Una, H.P., in Sessions Trial No. 1-VII/13, whereby the accused (respondent herein) was acquitted for the offences punishable under Section 498-A and 306 of the Indian Penal Code (for short "IPC").
2. The facts giving rise to the present appeal, as per the 1 Whether reporters of Local Papers may be allowed to see the judgment?
::: Downloaded on - 17/09/2024 20:32:41 :::CIS2 Neutral Citation No. ( 2024:HHC:8635 ) prosecution story, can be summarized as under:
2(a). On 11.05.2012, the police visited CHC Amb for inquiring a report and Medical Officer, CHC Amb, opined that patient Nisha was unfit for making any statement. The Medical .
Officer referred the patient to RH, Una. Dr. Usha Daroch issued the MLC of the patient and she handed over the blood sample and gastric lavage of the patient alongwith the MLC to the police.
Subsequently, the police received information from RH, Una, that the patient had died. A police team rushed to RH, Una, where the corpse of the deceased was found. Police got conducted the postmortem examination of the deceased from Dr. S.K. Bansal, who issued postmortem report and handed over viscera to the police. He reserved his opinion till chemical analysis report and as per the chemical analysis report, there was evidence of Pyrethriod poisoning.
2(b). The mother of the deceased got her statement recorded under Section 154 Cr.P.C. in the hospital. The corpse of the deceased was handed over to her parents and the I.O. visited the place of occurrence where the deceased had consumed poison and prepared the spot map. The father of the deceased produced a suicide note, which was taken into possession. Police also took into possession a plastic vial, which was lying below the bed of the deceased. Statements of the witnesses were recorded and the ::: Downloaded on - 17/09/2024 20:32:41 :::CIS
3 Neutral Citation No. ( 2024:HHC:8635 ) I.O. procured the call details of mobile No. 94186-92770 and 94355-0953. I.O. obtained the final opinion of the doctor at RH, Una. Marriage certificate of the deceased was also procured from the Panchayat Secretary of Gram Panchayat Tiai. The suicide .
note of the deceased was sent to GQED, Dharmshala, and its report was received. As per the police investigation, the deceased committed suicide due to ill-treatment and torture of the accused.
After completion of the investigation, police presented the charge-
sheet before the learned Trial Court.
3. The prosecution, in order to prove its case, examined eighteen witnesses. Statement of the accused under Section 313 Cr.P.C. was recorded, wherein he claimed innocence and denied the prosecution case, however, in defence he did not lead any evidence.
4. The learned Trial Court, vide impugned judgment dated 10.12.2013 acquitted the accused for the commission of the offences punishable under Section 498-A and 306 IPC, hence the instant appeal preferred by the appellant/State.
5. The learned Senior Additional Advocate General for the appellant/State contended that the impugned judgment is against the law and facts, based upon mis-appreciation of evidence, which ultimately resulted into miscarriage of justice, as such the same is liable to set-aside. He has further contended that the learned Trial ::: Downloaded on - 17/09/2024 20:32:41 :::CIS 4 Neutral Citation No. ( 2024:HHC:8635 ) Court has appreciated the evidence in a slip-shod and perfunctory manner and the impugned judgment is based on hypothetical reasoning, surmises and conjectures. Lastly, he submitted that the impugned judgment passed by the learned Trial Court be quashed .
and set-aside by allowing the instant appeal and the accused be convicted.
6. Conversely, the learned Senior Counsel for the respondent/Accused contended that the impugned judgment passed by the learned Trial Court is the result of proper appreciation of the material on record and the same was passed after appreciating the evidence and law in its right and true perspective. He has further contended that there was nothing against the accused and the judgment of acquittal passed by the learned Trial Court is a well reasoned judgment, which does not require any interference, thus the instant appeal, which sans merits, be dismissed.
7. We have heard the learned Senior Additional Advocate General for the appellant/State, learned Senior Advocate for the respondent/accused, and carefully examined the entire records.
8. It is well settled by the Hon'ble Apex Court in a catena of decisions that an Appellate Court has full power to review, re-
appreciate and reconsider the evidence upon which the order of acquittal is founded. However, Appellate Court must bear in mind ::: Downloaded on - 17/09/2024 20:32:41 :::CIS 5 Neutral Citation No. ( 2024:HHC:8635 ) 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. Further, if two reasonable views 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.
9. The scope of power of Appellate Court in case of appeal against acquittal has been dealt with by the Hon'ble Apex Court in Muralidhar alias Gidda & another Vs. State of Karnatka reported in (2014) 5 SCC 730, which reads as under:
"10. Lord Russell in Sheo Swarup[1], highlighted the approach of the High Court as an appellate court hearing the appeal against acquittal. Lord Russell said, "... the High Court should and will always give proper weight and consideration to such matters as (1) the views of the trial Judge as to the credibility of the witnesses; (2) the presumption of innocence in favour of the accused, a presumption certainly not weakened by the fact that he has been acquitted at his trial; (3) the right of the accused to the benefit of any doubt; and (4) the slowness of an appellate court in disturbing a finding of fact arrived at by a Judge who had the advantage of seeing the witnesses." The opinion of the Lord Russell has been followed over the years.
11. As early as in 1952, this Court in Surajpal Singh[2] while dealing with the powers of the High Court in an appeal against acquittal under Section 417 of the ::: Downloaded on - 17/09/2024 20:32:41 :::CIS 6 Neutral Citation No. ( 2024:HHC:8635 ) Criminal Procedure Code observed:
"7...........the High Court has full power to review the evidence upon which the order of acquittal was founded, but it is equally well settled that the presumption of innocence of the accused is further reinforced by his acquittal by the trial court, and the findings of the trial court which had the .
advantage of seeing the witnesses and hearing their evidence can be reversed only for very substantial and compelling reasons."
12. The approach of the appellate court in the appeal against acquittal has been dealt with by this Court in Tulsiram Kanu [3], Madan Mohan Singh [4], Atley [5] , Aher Raja Khima [6], Balbir Singh [7], M.G. Agarwal [8], Noor Khan [9], Khedu Mohton [10], Shivaji Sahabrao Bobade [11], Lekha Yadav [12], Khem Karan [13], Bishan Singh [14], Umedbhai Jadavbhai [15], K. Gopal Reddy [16], Tota Singh [17], Ram Kumar [18], Madan Lal [19], Sambasivan [20], Bhagwan Singh [21], Harijana Thirupala [22], C. Antony [23], K. Gopalakrishna [24], Sanjay Thakran [25] and Chandrappa [26]. It is not necessary to deal with these cases individually. Suffice it to say that this Court has consistently held that in dealing with appeals against acquittal, the appellate court must bear in mind the following:
(i) There is presumption of innocence in favour of an accused person and such presumption is strengthened by the order of acquittal passed in his favour by the trial court,
(ii) The accused person is entitled to the benefit of reasonable doubt when it deals with the merit of the appeal against acquittal,
(iii) Though, the power of the appellate court in considering the appeals against acquittal are as extensive as its powers in appeals against convictions but the appellate court is generally loath in disturbing the finding of fact recorded by the trial court. It is so because the trial court had an advantage of seeing the demeanor of the witnesses. If the trial court takes a reasonable view of the facts of the case, interference by the appellate court with the judgment of acquittal is not justified. Unless, the conclusions reached by the trial court are palpably wrong or based on erroneous view of the law or if such conclusions are allowed to stand, they are likely to result in grave injustice, the reluctance on the part of the appellate court in interfering with such ::: Downloaded on - 17/09/2024 20:32:41 :::CIS 7 Neutral Citation No. ( 2024:HHC:8635 ) conclusions is fully justified, and
(iv) Merely because the appellate court on re-
appreciation and re-evaluation of the evidence is inclined to take a different view, interference with the judgment of acquittal is not justified if the view taken by the trial court is a possible view. The evenly balanced views of the evidence must .
not result in the interference by the appellate court in the judgment of the trial court."
10. The Hon'ble Supreme Court in Rajesh Prasad vs. State of Bihar & another, (2022) 3 SCC 471, observed as under:
"31. The circumstances under which an appeal would be entertained by this Court from an order of acquittal passed by a High Court may be summarized as follows:
31.1. Ordinarily, this Court is cautious in interfering with an order of acquittal, especially when the order of acquittal has been confirmed up to the High Court. It is only in rarest of rare cases, where the High Court, on an absolutely wrong process of reasoning and a legally erroneous and perverse approach to the facts of the case, ignoring some of the most vital facts, has acquitted the accused, that the same may be reversed by this Court, exercising jurisdiction under Article 136 of the Constitution. [State of U.P. v. Sahai (1982) 1 SCC 352] Such fetters on the right to entertain an appeal are prompted by the reluctance to expose a person, who has been acquitted by a competent court of a criminal charge, to the anxiety and tension of a further examination of the case, even though it is held by a superior court. [Arunchalam v. P.S.R. Sadhanantham (1979) 2 SCC 297] An appeal cannot be entertained against an order of acquittal which has, after recording valid and weighty reasons, has arrived at an unassailable, logical conclusion which justifies acquittal. [State of Haryana vs. Lakhbir] 31.2. However, this Court has on certain occasions, set aside the order of acquittal passed by a High Court. The circumstances under which this Court may entertain an appeal against an order of acquittal and pass an order of conviction, may be summarized as follows:::: Downloaded on - 17/09/2024 20:32:41 :::CIS
8 Neutral Citation No. ( 2024:HHC:8635 ) 31.2.1. Where the approach or reasoning of the High Court is perverse;
(a) Where incontrovertible evidence has been rejected by the High Court based on suspicion and surmises, which are rather unrealistic. [State of Rajasthan v. Sukhpal Singh (1983) 1 SCC 393] For example, .
where direct, unanimous accounts of the eyewitnesses, were discounted without cogent reasoning. [State of U.P. vs. Shanker 1980 Supp SCC 489]
(b) Where the intrinsic merits of the testimony of relatives, living in the same house as the victim, were discounted on the ground that they were "interested" witnesses. [State of U.P. v. Hakim Singh (1980)
(c) Where testimony of witnesses had been disbelieved by the High Court, on an unrealistic conjecture of personal motive on the part of witnesses to implicate the accused, when in fact, the witnesses had no axe to grind in the said matter. [State of Rajasthan v. Sukhpal Singh (1983) 1 SCC 393]
(d) Where dying declaration of the deceased victim was rejected by the High Court on an irrelevant ground that they did not explain the injury found on one of the persons present at the site of occurrence of the crime. [Arunachalam vs. P.S.R. Sadhanantham (1979) 2 SCC 297]
(e) Where the High Court applied an unrealistic standard of "implicit proof" rather than that of "proof beyond reasonable doubt" and therefore evaluated the evidence in a flawed manner. [State of U.P. v. Ranjha Ram (1986) 4 SCC 99]
(f) Where the High Court rejected circumstantial evidence, based on an exaggerated and capricious theory, which were beyond the plea of the accused; [State of Maharashtra v. Champalal Punjaji Shah (1981) 3 SCC 610]
(g) Where the High Court acquitted the accused on the ground that he had no adequate motive to commit the offence, although, in the said case, there was strong direct evidence establishing the guilt of the accused, thereby making it necessary on the part of the prosecution to establish "motive". [State of A.P. v. Bogam Chandraiah (1990) 1 SCC 445] 31.2.2.Where acquittal would result is gross miscarriage of justice;
(a) Where the findings of the High Court, disconnecting the accused persons with the crime, were based on a perfunctory consideration of evidence, [State of U.P. v. Pheru Singh 1989 Supp (1) SCC] or based on ::: Downloaded on - 17/09/2024 20:32:41 :::CIS 9 Neutral Citation No. ( 2024:HHC:8635 ) extenuating circumstances which were purely based in imagination and fantasy [State of U.P. v. Pussu (1983) 3 SCC 502]
(b) Where the accused had been acquitted on ground of delay in conducting trial, which delay was attributable not to the tardiness or indifference of the prosecuting agencies, but to the conduct of the accused himself;
.
or where accused had been acquitted on ground of delay in conducting trial relating to an offence which is not of a trivial nature. [State of Maharashtra v. Champalal Punjaji Shah (1981) 3 SCC 610]."
11. In H.D. Sundara & others vs. State of Karnataka, (2023) 9 SCC 581, the Hon'ble Supreme Court has observed that the appellate court cannot overturn acquittal only on the ground that after re-appreciating evidence, it is of the view that the guilt of the accused was established beyond a reasonable doubt. The relevant portion of the above judgment is as under:
"8. In this appeal, were are called upon to consider the legality and validity of the impugned judgment rendered by the High Court while deciding an appeal against acquittal under Section 378 of the Code of Criminal Procedure, 1973 (for short "CrPC"). The principles which govern the exercise of appellate jurisdiction while dealing with an appeal against acquittal under Section 378 CrPC can be summarized as follows:
8.1.The acquittal of the accused further strengthens the presumption of innocence;
8.2.The appellate court, while hearing an appeal against acquittal, is entitled to reappreciate the oral and documentary evidence;
8.3.The appellate court, while deciding an appeal against acquittal, after reappreciating the evidence, is required to consider whether the view taken by the trial court is possible view which could have been taken on the basis of the evidence on record;
8.4.If the view taken is a possible view, the appellate court cannot overturn the order of acquittal on the ground that another view was also possible; and 8.5.The appellate court can interfere with the order of ::: Downloaded on - 17/09/2024 20:32:41 :::CIS 10 Neutral Citation No. ( 2024:HHC:8635 ) acquittal only if it comes to a finding that the only conclusion which can be recorded on the basis of the evidence on record was that the guilt of the accused was proved beyond a reasonable doubt and no other conclusion was possible.
9. Normally, when an appellate court exercises appellate jurisdiction, the duty of the appellate court is to find out .
whether the verdict which is under challenge is correct or incorrect in law and on facts. The appellate court normally ascertains whether the decision under challenge is legal or illegal. But while dealing with an appeal against acquittal, the appellate court cannot examine the impugned judgment only to find out whether the view taken was correct or incorrect. After re-appreciating the oral and documentary evidence, the appellate court must first decide whether the trial court's view was a possible view. The appellate court cannot overturn acquittal only on the ground that after re-
appreciating evidence, it is of the view that the guilt of the accused was established beyond a reasonable doubt. Only recording such a conclusion an order of acquittal cannot be reversed unless the appellate court also concludes that it was the only possible conclusion.
Thus, the appellate court must see whether the view taken by the trial court while acquitting an accused can be reasonably taken on the basis of the evidence on record. If the view taken by the trial court is a possible view, the appellate court cannot interfere with the order of acquittal on the ground that another view could have been taken."
12. Thus, the law on the issue can be summarized to the effect that in exceptional cases where there are compelling circumstances, and the judgment under appeal is found to be perverse, the appellate court can interfere with the order of acquittal. Further, if two views were possible on the basis of the evidence on record, the Appellate Court should not disturb the finding of acquittal recorded by the Trial Court, merely, because the Appellate Court could have arrived at a different conclusion than that of the Trial Court.
::: Downloaded on - 17/09/2024 20:32:41 :::CIS11 Neutral Citation No. ( 2024:HHC:8635 )
13. The burden of proof in a criminal trial never shifts and it is always the burden of the prosecution to prove its case beyond reasonable doubt on the basis of acceptable evidence. In fact, it is a settled principle of criminal jurisprudence that the more serious .
the offence, the stricter the degree of proof required, since a higher degree of assurance is required to convict the accused.
14. In the instant case, the accused has been tried under Section 306 read with Section 498-A, IPC for abetment of suicide and cruelty. Section 306 incorporates the offence of abetment of suicide and the main ingredients of the offence are the suicidal death and abetment thereof. The suicide is an intentional killing of oneself. The relevant provisions, which are now required to be looked into, are reproduced herein below:-
Section 306 of Indian Penal Code reads as under :
"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, thereby showing the commission of suicide must be pursuant to the abetment committed by any person. It is the case of the prosecution that the husband abetted the deceased wife to commit suicide.
15. Section 113A of the Indian Evidence Act, 1872 relates to presumption as to abetment of suicide by a married woman, which reads as follows:-
"113A. Presumption as to abetment of suicide by a married women.- When the question is whether the commission of suicide by a woman had been abetted by her husband or any relative of her husband and it is shown that she had ::: Downloaded on - 17/09/2024 20:32:41 :::CIS 12 Neutral Citation No. ( 2024:HHC:8635 ) committed suicide within a period of seven years from the date of her marriage and that her husband or such relative of her husband had subjected her to cruelty, the court may presume, having regard to all the other circumstances of the case, that such suicide had been abetted by her husband or by such relative of her husband.
Explanation- For the purposes of this section, "cruelty" shall .
have the same meaning as in section 498A of the Indian Panel Code (45 of 1860)."
16. Explanation to Section 498-A IPC defines cruelty caused on wife by husband or his relatives as follows:-
1[Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine.
Explanation.-For the purposes of this section, "cruelty means"--
(a) any willful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman; or
(b) harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand.]"
17. To substantiate the charges framed against the respondents/accused and to bring home the guilt of the accused, the prosecution examined as many as 18 witnesses. However, the case of the prosecution mainly rests upon the statements of PW-1, Smt. Neelam Rani, mother of the deceased, PW-2, Shri Jitender Rana, brother of the deceased, PW-3, Shri Surinder Kumar, father of the deceased, PW-4, Ms. Reena, PW-7, Shri Ashwani, PW-8, Dr. S.K. Bansal, PW-16, ASI Kuldeep Kumar (I.O.), PW-17, Dr. Una Darosh and PW-18, Dr. Minakshi Mahajan.
::: Downloaded on - 17/09/2024 20:32:41 :::CIS13 Neutral Citation No. ( 2024:HHC:8635 )
18. Mother of the deceased, i.e., Smt. Neelam Rani, who lodged the FIR, appeared in the witness-box as PW-1, deposed that on 14.11.2011 the deceased got married to the accused and for 2-2½ months the deceased was kept nicely. Thereafter, the .
deceased was tortured and maltreated on the ground of dowry and allegations of unchastity were also leveled. This witness has further deposed that the deceased used to narrate her that accused tortured and also misbehaved with her on telephone.
During the first week of March, 2012, when the deceased was indisposed and used to stay in their house, accused alongwith his brother forcibly took her. She has deposed that accused started demanding dowry in the last week of March, 2012, and gas connection was given. The deceased further narrated her that accused was demanding gift on the retirement of his father, thus a dining table, worth Rs.21,000/- was given. On 9th May, 2012, around 09:30 a.m., the deceased came to their house and told that accused was not satisfied with the dowry and he threatened her and also leveled allegations of unchastity on her and the accused was demanding rupees five lacs on the retirement of his father.
She (PW-1) assured to give rupees one lac. On 11th May, the accused threatened the deceased over telephone and when she (PW-1) talked with him, he misbehaved with her too and when she again talked to him on phone, he apologized. As per this witness, ::: Downloaded on - 17/09/2024 20:32:41 :::CIS 14 Neutral Citation No. ( 2024:HHC:8635 ) when she, alongwith with her husband and son, was in the house of one Vijay, they received a call of Shammi from Delhi, who inquired about the behavior of the accused with the deceased, and he informed that the deceased was going to consume poison due .
to the ill-treatment and torture of the accused. She further stated that her son went back to Amb and he was informed that the deceased had been taken to hospital at Amb by Reena and Neeta Devi, therefore, her son and she also rushed to the hospital. Her husband was patient of depression, so he was not informed and on the direction of the doctor, they took the deceased to Una Hospital, but enroute the deceased died. At Una Hospital, police came and she reported the matter to the police, vide her statement, Ex. PW-
1/A. She received telephonic call of her husband, who disclosed about the suicide note and an empty poison vial beneath the bed of the deceased. She has deposed that her nephew came with a photocopy of the suicide note, which was handed over to the police. As per this witness, the deceased had committed suicide by consuming poison due to the maltreatment and torture of the accused. This witness, in her cross-examination, admitted that prior to the marriage, the deceased was studying in BA 2nd year and after marriage she continued her studies. The deceased used to attend the college from her in-law's house and the accused also appeared in one paper of BA 3rd year in March, 2012 and after ::: Downloaded on - 17/09/2024 20:32:41 :::CIS 15 Neutral Citation No. ( 2024:HHC:8635 ) attending the paper he went back to Assam for joining his duty at Dibrugarh on 03.04.2012. The deceased used to come to their house while attending college at Amb. She also admitted that on the day the deceased committed suicide, the accused was in .
Assam. She did not disclose the fact that she received a call of the accused at 07:15 a.m. to anyone, including the police, panchayat and neighbours before leaving for village Jhalera.
19. Brother of the deceased-Jitender Rana (PW-2) deposed that in the morning of 11.05.2012 the accused telephoned the deceased and used obscene words and the deceased started weeping. His mother (PW-1) took the mobile phone from the deceased and the accused also misbehaved with his mother. He further deposed that they consoled the deceased and assured her to get the matter compromised on their return from condolence at Jhalera. He came on bike and his parents in a bus, when his maternal nephew Shammi telephonically informed him that the deceased was going to commit suicide by consuming poison due to the torture of the accused. As per this witness, he tried to talk to the deceased, but she did not respond, so he called Reena, who informed him that fluid was coming from the mouth of the deceased and she was unwell. In turn, he informed his mother (PW-1) and Reena and Anita had brought the deceased to the hospital, wherefrom the deceased was referred to RH, Una, and ::: Downloaded on - 17/09/2024 20:32:41 :::CIS 16 Neutral Citation No. ( 2024:HHC:8635 ) enroute she died. He deposed that her sister (deceased) committed suicide due to the torture and harassment of the accused. This witness, in his cross-examination, admitted that accused was doing job in Assam and after exam on 3rd April, he .
went back to Assam for joining his duty. They did not report the matter to the police or panchayat qua maltreatment and demand of dowry and after the death of the deceased dowry articles were taken back by them. This witness deposed that in his statement to the police he had narrated about the demand of dowry and that the accused had demanded rupees five lacs, whereas in his statement mark D2 it is not so recorded.
20. Father of the deceased-Surinder Kumar, while appearing in the witness-box as PW-3, reiterated the version as deposed by PW-1 (mother of the deceased) and he, in his cross-
examination, admitted that the deceased was studying in BA 2nd year and used to come to Amb from her in-laws' house and she used to come to their house. As per this witness, the deceased was not willing to marry the accused, but again stated that she was willing for marriage, thus marriage was solemnized.
21. PW-4-Reena, who alongwith one Anita allegedly took the deceased to the hospital, deposed that on 11.05.2012, around 09:45 a.m., she was informed telephonically by Neelam that the deceased had consumed poison. She further stated that when she ::: Downloaded on - 17/09/2024 20:32:41 :::CIS 17 Neutral Citation No. ( 2024:HHC:8635 ) reached the house of the deceased she found two ladies, i.e., Mukti Sharma and Kiran Sharma and she supported them to take the deceased in a vehicle. This witness was declared hostile by the learned Public Prosecutor and was subjected to extensive .
cross-examination. This witness, in her cross-examination, by the learned Public Prosecutor denied that she received any call of Shammi from Delhi, who advised her to go to the parental house of the deceased. She also denied that she accompanied the deceased to Una hospital. She feigned her ignorance qua the fact that the deceased had committed suicide due to the ill-treatment and torture of the accused.
22. PW-7, Ashwani Kumar, deposed that on 11.05.2012, around 10:00 a.m., he received a telephonic call from his wife, Anita, who disclosed that the deceased had consumed poison, but before he arrived, the deceased was taken to Una hospital. This witness was also declared hostile by the learned Public Prosecutor and he was subjected to extensive cross-examination. This witness, in his cross-examination, by the learned Public Prosecutor denied that his wife informed him that the accused used to torture the deceased due to his ill-treatment she was in depression.
23. PW-8, Dr. S.K. Bansal, who conducted postmortem examination on the corpse of the deceased on 11.05.2012, stated that he noticed no injury on any part of the corpse. There was no ::: Downloaded on - 17/09/2024 20:32:41 :::CIS 18 Neutral Citation No. ( 2024:HHC:8635 ) ligature mark on the neck Cranium and spinal cord was normal.
Thorax was also normal. Frothing was present at the mouth nostrils. Stomach was full of grey fluid. As per the chemical analysis report, Ex. PW-8/B, there was evidence of Pyrethriod .
poisoning. He has further stated that viscera was preserved and sent to RFSL, Dharamshala, and the same was handed over to the police. He had issued the postmortem report, Ex. PW-8/C, and opined the cause of death due to poisoning. The time elapsed between death and postmortem was within 12 hours.
24. PW-17, Dr. Usha Daroch, the then Medical Officer CHC Amb deposed that on 11.05.2012, around 10:00 a.m., the deceased was brought with the alleged history of ingestion of some poisonous substance. She administered first aid to the deceased and took sample of gastric lavage and blood, which were handed over to the police for chemical analysis. She noticed no injury on the person of the deceased and she referred her to RH Una for further treatment. PW-18 Dr. Minakshi Mahajan, the then Assistant Director, Documents and Photo Division, RFSL, Dhamshala, stated that on 14.05.2012 two sealed envelopes, each bearing three seals having impression 'K', were received through constable Jyoti Prakash. The said samples were thoroughly examined in the laboratory.
25. I.O., Kuldeep Kumar, who appeared in the witness-box ::: Downloaded on - 17/09/2024 20:32:41 :::CIS 19 Neutral Citation No. ( 2024:HHC:8635 ) as PW-16 deposed that on being telephonically informed from CHC, Amb, rapat, Ex. PW-16/A, was entered and he alongwith Constable Ajay No. 386 went to CHC Amb. He further stated that the deceased was not in a position to give statement and she was .
referred to RH, Una. As per this witness, he moved an application Ex. PW-16/A to Medical Officer for obtaining opinion qua giving statement by the deceased, but the doctor declared her unfit to give statement. He stated that he obtained MLC of the deceased, which is mark 'S'. He had taken the blood sample of the deceased alongwith gastric lavage from doctor Usha Daroch in a sealed bottle. When he returned to Police Station Amb, he received telephonic information that the deceased had died, thus rapat, Ex.
PW-10/B was entered. Thereafter, he alongwith Constable Ajay Kumar and HHG Saroj Kumari went to RH Una. Postmortem examination of the deceased was got conducted. Statement of the mother of the deceased, Ex.PW-1/A, was recorded, whereupon FIR, Ex. PW-13/B, was registered. During investigation, he visited the spot and prepared the spot map of the house of the Surinder (father of the deceased). As per this witness, father of the deceased had produced a suicide note, Ex. PW-1/B, which was taken into possession. An empty plastic bottle, which was lying below the bed of the deceased was recovered, which was sealed in a cloth parcel and sealed with seal having impression 'K'. He ::: Downloaded on - 17/09/2024 20:32:41 :::CIS 20 Neutral Citation No. ( 2024:HHC:8635 ) recorded the statements of the witnesses and on receipt of RFSL report, he obtained final opinion of doctor at RH Una.
26. We have closely scrutinized the statements of Smt. Neelam Rani, mother of the deceased (PW-1), Shri Jitender Rana, .
brother of the deceased (PW-2) and Shri Surinder Kumar, father of the deceased (PW-3) and from the perusal of their statements, it has not been established that the accused was maltreating or harassing the deceased on account of bringing insufficient dowry or to meet his unlawful demands of dowry. The aforesaid witnesses have made lot of improvements in their statements.
Though, in their statements they have stated that the accused used to torture the deceased, however, they have admitted that no complaint, whatsoever, to this effect was submitted by the deceased or by them prior to the death of the deceased with the police, panchayat or with any other authority. From the perusal of the statements, it is clear that in the month of March, 2012, the deceased had appeared in the examination of BA 3rd year and the accused had also appeared in the compartment paper of BA 2nd year and after the examination, the accused went to Assam in the month of April, 2012, for joining his duty.
27. From the perusal of the entire evidence on record, it has become clear that the deceased had continued her studies even after her marriage and she used to come to attend her ::: Downloaded on - 17/09/2024 20:32:41 :::CIS 21 Neutral Citation No. ( 2024:HHC:8635 ) college at Amb everyday from the house of her in-laws. It is an admitted case of the prosecution that the deceased had died in the house of her parents. It has also come on record that the accused was not present at the time of the death of the deceased at .
Amb/Una and at that relevant time he was in Assam. The prosecution has failed to explain as to in what manner the accused had tortured the deceased on the mobile phone on the day she committed suicide. No record of conversation has been produced by the prosecution, which has allegedly taken place between the deceased and the accused on that day. There is no evidence on record to suggest that the alleged cruelty meted out to the victim had in fact induced her to end her life by committing suicide.
28. Perusal of the suicide note shows that some general statement has been made by the deceased against her husband.
It has nowhere been mentioned in the suicide note that the accused had ever instigated the deceased to commit suicide. In fact, no specific instance of abetment to commit suicide by the accused has been mentioned therein. The prosecution has also failed to explain as to why in the suicide note it has been mentioned that "My Mummy-Papa are not at fault". Moreover, the suicide note is undated, hence, in the absence of any evidence as to when suicide note, Ex.PW-1/B, was written, much importance cannot be attached to it, in order to arrive to a conclusion that the ::: Downloaded on - 17/09/2024 20:32:41 :::CIS 22 Neutral Citation No. ( 2024:HHC:8635 ) accused had abetted the deceased to commit suicide. The prosecution has failed to lead any evidence to suggest that the accused had instigated or compelled the deceased to commit suicide as such merely on the basis of the suicide note, the .
accused cannot be convicted for the death of the deceased.
29. The mere fact that woman had committed suicide within six months of her marriage and that she had been subjected to cruelty by her husband, does not automatically give rise to the presumption that the suicide had been abetted by her husband.
There is no direct evidence that accused aided or instigated the deceased to commit suicide or entered into any conspiracy to aid her in committing suicide.
30. In Ghulam Mustafa vs State of Uttarakhand, AIR 2015 SC 3101, the Hon'ble Supreme Court held that a casual remark or something said in a routine way or in usual conversation should not be construed or misunderstood to mean 'abetment.' A conviction on mere allegation of harassment without any positive action in proximity to the time of occurrence on the part of accused that led a person to commit suicide is not sustainable under section 306 IPC.
31. Again, in Gurucharan vs State of Punjab, AIR 2017 SC 74, it has been held that to constitute the offence under section 306 IPC, there should be a live link between abetment and suicide ::: Downloaded on - 17/09/2024 20:32:41 :::CIS 23 Neutral Citation No. ( 2024:HHC:8635 ) and the intention and involvement of the accused to aid or instigate the commission of suicide is imperative. So far as the grievance of dowry demand and consequential harassment is concerned, it should not be general in nature and there should be some specific .
incident and should have provocative capability to drive the deceased to such distressed state, mental and physical that she could elect to end her life.
32. In Nachhatter Singh vs State of Punjab, (2011) 11 SCC 542, the Court observed that in case of abetment of suicide by married woman, the cruelty and harassment meted out must be of nature to drive a person of common prudence to commit suicide.
Every quarrel between husband and wife which results in suicide cannot be taken to abetment by husband. For abetment, standard of reasonable or practical woman as compared to headstrong and over sensitive one is to be applied.
33. In Sohan Raj Sharma Vs. State of Haryana, AIR 2008 Supreme Court 2108, the Hon'ble Supreme Court held:-
"9. In State of West Bengal Vs. Orilal Jaiswal (AIR 1994 SC 1418) this Court has observed that the courts should be extremely careful in assessing the facts and circumstances of each case and the evidence adduced in the trial for the purpose of finding whether the cruelty meted out to the victim had in fact induced her to end her life by committing suicide. If it transpires to the Court that a victim committing suicide was hypersensitive to ordinary petulance, discord and differences in domestic life quite common to the society to which the victim belonged and such petulance discord and differences were not expected to induce a similarly circumstanced individual in a ::: Downloaded on - 17/09/2024 20:32:41 :::CIS 24 Neutral Citation No. ( 2024:HHC:8635 ) given society to commit suicide, the conscience of the Court should not be satisfied for basing a finding that the accused charged of abetting the offence of suicide should be found guilty.
10. Section 107 IPC defines abetment of a thing. The offence of abetment is a separate and distinct offence provided in the Act as an offence. A person abets the .
doing of a thing when (1) he instigates any person to do that thing; or (2) engages with one or more other persons in any conspiracy for the doing of that thing; or (3) intentionally aids, by act or illegal omission, the doing of that thing. These things are essential to complete abetment as a crime. The word "instigate"
literally means to provide, incite, urge on or bring about by persuasion to do any thing. The abetment may be by instigation, conspiracy or intentional aid, as provided in the three clauses of Section 107. Section 109 provides that if the act abetted is committed in consequence of abetment and there is no provision for the punishment of such abetment, then the offender is to be punished with the punishment provided for the original offence. 'Abetted' in Section 109 means the specific offence abetted. Therefore, the offence for the abetment of which a person is charged with the abetment is normally linked with the proved offence.
11. In cases of alleged abetment of suicide there must be proof of direct or indirect acts of incitement to the commission of suicide. The mere fact that the husband treated the deceased-wife with cruelty is not enough.
[See Mahinder Singh Vs. State of M.P. (1955 AIR SCW 4570)]."
34. In Harjit Singh Vs. State of Punjab, AIR 2006 Supreme Court 680, it is held as under:-
"26. Before invoking the provisions of Section 306 IPC, it is necessary to establish that : (1) the deceased committed suicide, and (ii) she had been subjected to cruelty within the meaning of Section 498 A IPC.
27. Only in the event those facts are established, a presumption in terms of Section 113 A of the Indian Evidence Act could be raised. In the instant case, the prosecution has not been able to prove that the deceased was subjected to cruelty within the meaning of Section 498 A, IPC. No case that the deceased committed suicide was also made out."
35. The legal position has been reiterated by the Hon'ble ::: Downloaded on - 17/09/2024 20:32:41 :::CIS 25 Neutral Citation No. ( 2024:HHC:8635 ) Supreme Court in Mariano Anto Bruno and another Vs. Inspector of Police, AIR 2022 Supreme Court 4994, wherein it has been held as follows:-
" 25. The ingredients of Section 306 IPC have been .
extensively laid out in M. Arjunan Vs. State, represented by its Inspector of Police 7 which are as under:-
"The essential ingredients of the offence under Section 306 IPC are: (i) the abetment; (ii) the intention of the accused to aid or instigate or abet the deceased to commit suicide. The act of the accused, however, insulting the deceased by using abusive language will not, by itself, constitute the abetment of suicide. There should be evidence capable of suggesting that the accused intended by such act to instigate the deceased to commit suicide. Unless the ingredients of instigation/abetment to commit suicide are satisfied, accused cannot be convicted under Section 306 IPC."
26. In order to convict an accused under Section 306 IPC, the state of mind to commit a particular crime must be visible with regard to determining the culpability. With regard to the same, a two-judge bench of this Court in Ude Singh & Ors. State of Haryana observed as under:-
"16. In cases of alleged abetment of suicide, there must be a proof of direct or indirect act/s of incitement to the commission of suicide. It could hardly be disputed that the question of cause of a suicide, particularly in the context of an offence of abetment of suicide, remains a vexed one, involving multifaceted and complex attributes of human behavior and responses/reactions. In the case of accusation for abetment of suicide, the Court would be looking for cogent and convincing proof of the act/s of incitement to the commission of suicide. In the case of suicide, mere allegation of harassment of the deceased by another person would not suffice unless there be such action on the part of the accused which compels the person to commit suicide; and such an offending action ought to be proximate to the time of occurrence. Whether a person has abetted in the commission of suicide by another or not, could only be gathered from the facts and circumstances of each case. 16.1. For the purpose of finding out if a person has abetted commission of suicide by another; the consideration would be if the accused is guilty of the act of instigation of the act of suicide. As explained and reiterated by this Court in the decisions above- referred, instigation means to goad, urge forward, provoke, incite or encourage to do an act. If the persons who committed suicide had been ::: Downloaded on - 17/09/2024 20:32:41 :::CIS 26 Neutral Citation No. ( 2024:HHC:8635 ) hypersensitive and the action of accused is otherwise not ordinarily expected to induce a similarly circumstanced person to commit suicide, it may not be safe to hold the accused guilty of abetment of suicide. But, on the other hand, if the accused by his acts and by his continuous course of conduct creates a situation which leads the deceased perceiving no other option except to commit suicide, the case may .
fall within the four-corners of Section 306 IPC. If the accused plays an active role in tarnishing the self- esteem and self-respect of the victim, which eventually draws the victim to commit suicide, the accused may be held guilty of abetment of suicide. The question of mens rea on the part of the accused in such cases would be examined with reference to the actual acts and deeds of the accused and if the acts and deeds are only of such nature where the accused intended nothing more than harassment or snap show of anger, a particular case may fall short of the offence of abetment of suicide. However, if the accused kept on irritating or annoying the deceased by words or deeds until the deceased reacted or was provoked, a particular case may be that of abetment of suicide. Such being the matter of delicate analysis of human behaviour, each case is required to be examined on its own facts, while taking note of all the surrounding factors having bearing on the actions and psyche of the accused and the deceased."
36. In Hans Raj Vs. State of Haryana, (2004) 12 SCC 257, the Supreme Court held that the nature of presumption under Section 113A is discretionary in the sense that from the mere fact that the wife committed suicide within 07 years of marriage and that she had been subjected to cruelty by the husband, there will be no automatic presumption that the suicide had been abetted by the husband.
37. Thus, in view of the aforesaid authoritative pronouncements of Hon'ble Supreme Court, if the Court examines the allegations made in this case, there is no direct evidence of ::: Downloaded on - 17/09/2024 20:32:41 :::CIS 27 Neutral Citation No. ( 2024:HHC:8635 ) cruelty inflicted by the present accused against the deceased. The facts suggest that there may have some strained relationship between the accused and the deceased that does not mean that he inflicted physical and mental torture upon the victim which led .
her to commit suicide. There is no principle of law that wherever wife commits suicide, the husband would bear the responsibility and would be held liable. It has come in evidence on record that the deceased Nisha appeared in the examination of BA 3 rd year in March, 2012, and accused had also appeared in the compartment examination of BA 2nd year and after the examination was over, the accused went to Assam in the month of April, 2012 for joining his duty. It is an admitted that that the deceased had died while she was in her parents' house and at that time the accused was in Assam in connection with his duties. When the deceased was living at her parents' house and the deceased was quite far away, i.e., in Dibrugarh in Assam and no specific incident of maltreatment and cruelty was disclosed or reported either to the police or to the local panchayat or to any other authority before her death by the deceased or her parents/relatives, the general allegations of harassment cannot be sufficient to hold the accused guilty for the offence of abetment of suicide. The prosecution has failed to establish positive act on the part of the accused to instigate or to compel the deceased to commit suicide. The allegations made by ::: Downloaded on - 17/09/2024 20:32:41 :::CIS 28 Neutral Citation No. ( 2024:HHC:8635 ) the prosecution witnesses are general in nature and no specific instance of the alleged maltreatment or cruelty has been given by the prosecution witnesses, which can be construed as cruelty or abetment to commit suicide on the part of the accused.
.
38. The prosecution has failed to examine any independent witness to prove that any demand of dowry was made by the accused in their presence. There is no satisfactory material on record to prove cruelty and harassment with the deceased before the incident or abetment in proximity of time for committing suicide.
To attract the offence under Section 306 IPC, the alleged cruelty, instigation or encouragement by accused should not only be proved by prosecution but also be of such nature which leaves no option to the deceased except to commit suicide. There is no evidence led by prosecution that there was abetment of such grave nature which was likely to drive the deceased to commit suicide.
The suicidal death in this case cannot be due to any illegal act or illegal omission or instigation, by anybody else. It may be the deceased's own act, being of hyper sensitive nature, for which, the husband cannot be held guilty. The learned Trial Court has rightly observed that the decision to commit suicide invariably is taken on the spur of the moment and normally it does not require long drawn elaborate planning even though the person is disturbed over a point for some time.
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39. Thus, we are of the considered opinion that the view taken by the trial Court while acquitting the accused is a reasonable view based on the evidence on the record and the same cannot be said to be perverse or contrary to the material on .
record.
40. In view of what has been discussed hereinabove, no interference in the judgment of acquittal dated 10.12.2013, passed by the learned Additional Sessions Judge-II, Una, District Una, H.P. in Sessions Trial No. 1-VII/13, is required as the same is the result of proper appreciation of evidence and law. The appeal, which is devoid of merits, deserves dismissal and is accordingly dismissed.
Bail bonds are discharged.
Pending application(s), if any, shall also stand disposed of.
( Tarlok Singh Chauhan ) Judge ( Sushil Kukreja ) Judge 17th September, 2024 (virender) ::: Downloaded on - 17/09/2024 20:32:41 :::CIS