Punjab-Haryana High Court
Ram Chand Kanwal (Died) & Dipak Kumar vs State Of Haryana on 13 August, 2012
Author: Mehinder Singh Sullar
Bench: Mehinder Singh Sullar
CRA No.550-SB of 2003 -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
Criminal Appeal No.550-SB of 2003
Date of Decision:-13.8.2012
Ram Chand Kanwal (died) & Dipak Kumar ...Appellants
Versus
State of Haryana ...Respondent
CORAM: HON'BLE MR.JUSTICE MEHINDER SINGH SULLAR
Present:- Mr.Pritam Saini, Advocate for the appellants.
Mr.Sameer Singh, A.A.G., Haryana for the respondent.
Mehinder Singh Sullar, J. (Oral)
The matrix of the facts, material & evidence, unfolded during the course of trial, culminating in the commencement, relevant for disposal of the instant appeal and emanating from the record, is that, the marriage of Malti Devi (acquitted accused), daughter of Ram Chand Kanwal, was solemnized with Vijay Kumar, son of complainant Vidya Devi widow of Bhagwan Dass, resident of village Randoli, District Karnal on 11.12.1991, according to Hindu rites and ceremonies at Kunjpura (Karnal). Her parents were stated to have verified the property/financial status of Vijay Kumar before the marriage. Malti Devi was MA pass, whereas Vijay Kumar was under matric. The prosecution claimed that Malti Devi and her parents started disliking Vijay Kumar, asked him to sell his land and to settle at Kunjpura. He projected his inability as he did not want to desert his widowed mother, who was residing in village Randoli. They threatened that if he failed to sell his land, then, Malti Devi may seek divorce from him, as she did not want to live in village Randoli.
2. The case of the prosecution further proceeds (in FIR Ex.DA) that the relations between Malti Devi and Vijay Kumar became strained. On 13.9.1992, her CRA No.550-SB of 2003 -2- parents came to the house of the complainant and took away Malti Devi without her consent alongwith jewellery and clothes etc. to Kunjpura. They also threatened her with dire consequences in case, they attempted to bring Malti Devi back to her matrimonial home. On the same night, Vijay Kumar went to his in-laws' house at village Kunjpura for bringing back Malti Devi. He did not return to his house. It was claimed that Jindu Ram son of Kishan Chand came to village Randoli and told the complainant party that Vijay Kumar had hanged himself and he had died. She took Hari Chand and Diwan Chand with her and went to village Kunjpura. The police of Police Post Kunjpura was already present at the spot. They told the police that it was not a case of hanging by Vijay Kumar, but it is a case of murder and it had been shown to be so by the accused to save their skin.
3. Leveling a variety of allegations and narrating the sequence of events, in all, according to the complainant that the accused have committed the murder of her son Vijay Kumar. The police did not take any action and no case was registered against the accused.
4. Faced with the situation, CWP No.758 of 1992 filed by the complainant was allowed and this Court directed the police to investigate the matter, vide order dated 31.5.1993 (Ex.PD). In pursuance thereof and in the wake of complaint of complainant Vidya Devi (mother of the deceased), the present case was registered against Malti Devi (wife), Ram Chand Kanwal (father-in-law), Shakuntla Devi (mother-in-law), appellant Dipak Kumar-brother-in-law (loser) of Vijay Kumar (deceased) and other relatives Rajinder son of Ram Lal, Ashok Kumar son of Bishan Dass and Kaura Ram son of Ram Lal, by means of FIR No.294 dated 25.6.1993 (Ex.DA), on accusation of having committed the offences punishable under Sections 148, 302, 201 and 120-B read with Section 149 IPC by the police of Police Station Sadar Karnal, in the manner depicted here-in-above. At the same time, the complainant had also filed a private complaint (Ex.DE) against CRA No.550-SB of 2003 -3- all the accused.
5. After the completion of the investigation, the police submitted the final police report/challan, in terms of Section 173 Cr.PC. Since the case was triable by the Court of Session, so, it was committed to it by the Judicial Magistrate 1st Class.
6. Having completed all the codal formalities, all the accused were accordingly charge sheeted for the commission of offences punishable under Sections 120-B, 302 and 201 read with Section 120-B IPC by the trial Court, by means of order dated 19.8.2002 and the case was slated for evidence of the prosecution.
7. The prosecution, in order to substantiate the charges framed against the accused, examined PW1 Dr.R.M.Singh, who conducted the post mortem examination, vide post mortem report (Ex.PA) on the dead body of Vijay Kumar and found chocolate colour ligature mark 4.6 x 1½ inch running obliquely to the base of left pinna. After receipt of report (Ex.PB) of Chemical Examiner, he opined, by virtue of opinion (Ex.PC/1) that the cause of death was due to hanging. He has also confirmed that 34.5% alcohol was also found there.
8. The next to note is the testimony of PW2 Vidya Devi (complainant), who has inter-alia stated, on oath, that the marriage of her son Vijay Kumar was solemnized with Malti Devi on 10.12.1991, according to Hindu rites and ceremonies at village Kunjpura. Her son was under Matric, whereas Malti was MA/BA. The marriage was performed after the verification of the property and financial status of Vijay Kumar by her parents. Malti asked Vijay Kumar to hand over ` 2 lacs to them for her service, but her son showed his inability to pay the amount. On this, Malti and her parents started picking up quarrels with her son Vijay Kumar. Malti also pressurized her son to sell the property and settle at Kunjpura, as she was not ready to live in village Randoli. Malti and her parents CRA No.550-SB of 2003 -4- threatened Vijay Kumar either to seek divorce or live with her at Kunjpura after selling his entire property. Vijay Kumar refused to accept the condition of Malti and her parents. According to PW2 that on 13.9.1992, the parents of Malti and her brother Dipak Kumar (appellant) came to village Randoli and took away Malti with them without her consent. They also took away jewellery and costly clothes with them. As soon as, her son came to the house in the evening, in the meantime, she narrated the entire incident to him. He immediately left for Kunjpura to bring back Malti. He did not return to his home. On 14.9.1992, two persons came to her house in the morning and told that her son had died at Kunjpura. Thereafter, she reached there & then to Civil Hospital, Karnal and saw the dead body of his son. She immediately told the police that her son was murdered, but no action was taken against the accused by the police.
9. Sequelly, PW4 Subhash Chander, PW5 Kishan Chand, PW7 Amar Singh & PW8 Mohan Lal have, inter alia, deposed about the relationship between the parties and the cause of dispute between Malti and her husband Vijay Kumar. They have also stated that on 13.9.1992, Malti was brought to Kunjpura by her mother Shakuntla and brothers. On 14.9.1992, they received information that Vijay Kumar had been murdered. Thereafter, they alongwith several other villagers reached village Kunjpura and saw the dead body of Vijay Kumar. It will not be out of place to mention here that their hear-say evidence is not of much consequence as regards the pointed offence is concerned. PW6 Om Parkash, Lab. Attendant has proved the employment of Ram Chander accused and Smt.Meena Rai, wife of S.P.Rai as Teachers in St. Theresa Convent School, Karnal. PW9 Vishnu Ram stated that on account of snake bite, he advised Vijay Kumar not to consume liquor and pickles.
10. Likewise, last to note is the statement of PW3 ASI Azad Singh, who has maintained that on the date of occurrence, he was posted in Police Post CRA No.550-SB of 2003 -5- Kunjpura as Head Constable. Master Ram Chander and Subhash Chand Sarpanch met him and Ram Chander got recorded his statement (Ex.PF). Thereafter, he inspected the place of occurrence and conducted the proceedings about the death of Vijay Kumar. He prepared the rough site plan (Ex.PG) and proceedings under section 174 Cr.PC (Ex.PC). One rope was taken into possession, vide memo (Ex.PH). In cross-examination, PW3 has categorically admitted that at the time of preparing the proceedings u/s 174 Cr.PC, he correctly recorded the statement (Ex.DC) of Diwan Chand son of Ashu Ram, resident of village Randoli, real uncle of deceased Vijay Kumar, which was duly signed by him. He has also recorded the statement (Ex.DD) of Ramesh son of Diwan, 1st cousin of deceased Vijay Kumar. After the post mortem examination, he handed over the dead body of Vijay Kumar to Diwan Chand and Ramesh Kumar against receipt (Ex.DE). This is the entire evidence brought on record by the prosecution.
11. Having closed the prosecution evidence, the statements of the accused were recorded, as contemplated under Section 313 Cr.PC. The entire incriminating evidence was put to enable them to explain any circumstances appearing against them in the evidence. However, the accused have stoutly denied the prosecution evidence in its totality and pleaded false implication. Appellant Dipak Kumar adopted the following line of defence:-
"The complainant has filed a false complaint against myself and other co-accused. My brother-in-law Vijay Kumar deceased was a day drunkard. He was also under the heavy debts. His motorcycle was also stolen which he has purchased on higher purchase agreement. Commission agent and Financier used to pressurize him to pay the loan amount. Under the influence of liquor he used to beat my sister and used to torture like anything. On 13.9.92 my brother-in-law Vijay Kumar came to my parental home in a heavy drunkened condition and started pressurizing my mother to send back my sister at her in-laws house and at that time my father Ram Chander was not at home. Vijay Kumar sat outside my house and started loudly abusing and creating nuisance. My uncle Ram Lal and his son Kaura CRA No.550-SB of 2003 -6- Ram offered my brother-in-law to take food and after taking food my brother- in-law was interested in sleeping in the house of Kaura Ram but Kaura Ram was having one room only and Vijay Kumar could not be adjusted because the other family members of the Kaura Ram were also sleeping in the same room so Vijay Kumar slept in a room of school owned by our family adjacent to the room of Kaura Ram on the intervening night of 13/14.9.92. My brother-in-law committed suicide by hanging himself with the ceiling fan. In the next morning, my cousin Asha d/o Kaura Ram aged about 10 years went to open the room of the school and when she came to know that the room is bolted from inside she jumped over the wall and found Vijay Kumar in a hanging position with the ceiling fan. Then our family member with some hope of life cut the rope and dead body of Vijay Kumar was put on chair lying rightly under the ceiling fan. After the death my relation with my sister- in-laws did not remain cordial on the issue of returning of dowry articles. I am innocent."
12. In order to substantiate their defence plea, the accused have placed reliance on Ex.DA copy of FIR No.294 dated 13/14.7.1992, Ex.DB police proceedings, Ex.DC statement of Diwan Chand, Ex.DD statement of Ramesh, Ex.DE receipt of dead body and Ex.DF statement of Amar Singh in documentary evidence.
13. Although, the trial Court, after taking into consideration the evidence on record, partially disbelieved the prosecution version and acquitted main accused Malti Devi, her mother Shakuntla Devi and other relatives, but still, convicted and sentenced appellant Dipak Kumar and his father Ram Chand Kanwal (since deceased) to undergo rigorous imprisonment for a period of three years each, to pay a fine of `1500/- each and in the event of non-payment of fine, they were further ordered to undergo rigorous imprisonment for a period of nine months each for the commission of offence punishable under section 306 read with section 34 IPC, by virtue of impugned judgment of conviction dated 7.3.2003 and order of sentence dated 11.3.2003.
14. Appellant Dipak Kumar and his father Ram Chand Kanwal did not CRA No.550-SB of 2003 -7- feel satisfied and preferred the instant appeal to challenge the impugned judgment of conviction & order of sentence. That is how I am seized of the matter.
15. At the very outset, the learned counsel for the appellants has placed on record the death certificate (Annexure P2), which would reveal that appellant Ram Chand had expired on 25.12.2009. The factum of his death is acknowledged by the learned State counsel as well. In this view of the matter, the appeal filed by Ram Chand stands abated on account of his death. In this manner, the appeal with regard to conviction & sentence of appellant Dipak Kumar only survives for consideration.
16. Assailing the impugned judgment of conviction & order of sentence, the learned counsel has contended with some amount of vehemence that all the main allegations of harassment and quarrel, allegedly responsible for the death of Vijay Kumar are assigned to main accused Malti Devi, her mother Shakuntla Devi and other relations (since acquitted) and her father Ram Chand Kanwal (since deceased), but the trial Court has illegally convicted appellant Dipak Kumar without any legal evidence on record. The argument is that if the prosecution story/evidence is believed to be true as such in its entirety, even then, no offence u/s 306 IPC is made out against him. Raising a variety of arguments and placing reliance on copy of matriculation certificate (Ex.DX), it was contended that the date of birth of appellant Dipak Kumar is 23.6.1976 and since he was juvenile at the time of occurrence, so, the entire proceedings/trial are vitiated and he is liable to be acquitted in this relevant connection.
17. Hailing the impugned judgment of conviction & order of sentence, on the contrary, the learned State counsel has urged that the trial Court has relied on cogent prosecution evidence and no interference is warranted in this respect.
18. Having heard the learned counsel for the parties, having gone through the record/legal position with their valuable assistance and after bestowal CRA No.550-SB of 2003 -8- of thoughts over the entire matter, to my mind, the instant appeal deserves to be accepted in this context.
19. What cannot possibly be disputed is that all the cogent cardinal fundamental principles and basic rules of criminal law/jurisprudence, have to be kept in focus while deciding such criminal cases. Some of these are that the absolute onus is always on the prosecution to prove its case beyond any reasonable doubt. The accused cannot possibly be convicted without any substantive evidence as the evidence is essential element in the criminal proceedings, notwithstanding the seriousness of the allegations alleged against him. The criminal proceedings require strict proof of guilt. It is the legal evidence, on the basis of which, the decision of a criminal court is based and is the legal requirement of criminal justice. Otherwise, in the absence of cogent substantive evidence, the Courts have no option, but to record an order of acquittal howsoever painful the same may be.
20. It is not a matter of dispute that the prosecution claimed that Vijay Kumar had committed suicide and appellant Dipak Kumar abetted the commission of such suicide. Accordingly, the trial Court convicted him for the commission of offence of abetment. Section 306 IPC postulates that "If any person commits suicide, whoever abets the commission of such suicide, shall be punished therein." The abetment of a thing has been defined u/s 107 IPC to mean that a person abets the doing of a thing, who instigates any person to do that thing; or 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 intentionally aids, by any act or illegal omission, the doing of that thing.
21. Sequelly, Section 108 IPC posits that a person abets an offence, who abets either the commission of an offence, or the commission of an act which would be an offence, if committed by a person capable by law of committing an CRA No.550-SB of 2003 -9- offence with the same intention or knowledge as that of the abettor.
22. A conjoint and meaningful reading of these provisions would reveal that in order to attract the penal provisions of section 306 IPC, there should be a positive evidence on record that appellant Dipak Kumar intentionally hatched a conspiracy or actually/actively aided and abetted in such a manner, leaving no option for Vijay Kumar to commit suicide. It cannot possibly be disputed here is that each person's sensitivity and suicidability pattern is different from the others. Each person has his own idea of self esteem and self-respect. Without a positive act on the part of the accused to instigate or aid in committing suicide, there cannot be any conviction.
23. Meaning thereby, there has to be a clear mens rea, active participation or direct act and intention to provoke, incite or encourage to do an act by the accused, which led the deceased to commit suicide seeing no option and this act must have been intended to push the deceased into such a grave position that he committed suicide. The knowledge, intention, mens rea, positive active participation leaving no option and compelling a person to commit suicide, inter- alia, are the essential ingredients to convict a person u/s 306 IPC.
24. Such thus being the legal position and evidence on record, now the short and significant question, though very important, that arises for determination in this appeal is, as to whether the prosecution has brought on record sufficient evidence in this relevant connection or not?
25. Having regard to the rival contentions of learned counsel for the parties, to me, the answer must obviously be in the negative, as the prosecution has miserably failed to substantiate the charge u/s 306 IPC against the appellant.
26. As is evident from the record, that complainant Vidya Devi put the police machinery into motion and made her initial statement, which formed the basis of FIR (Ex.DA), wherein, she has originally stated that Malti Devi (acquitted CRA No.550-SB of 2003 -10- accused), wife of her son Vijay Kumar (deceased) came to her house. She asked him about the amount of ` 2 lacs, whereupon Vijay Kumar replied that he had got no money with him and that it had been spent on construction of residential house and on the marriage. She took ill of it, started creating troubles and showed her desire for divorce. There was a dispute between them. Malti Devi wanted to have divorce after having sufficient amount from her son. The relations between them became strained. She has categorically stated that the parents of Malti Devi (not appellant Dipak Kumar) came to her house and took away Malti Devi without her consent along with the jewellery and clothes to Kunjpura. They have also threatened them with dire consequences (emphasis supplied). On the same night, her son Vijay Kumar went to Kunjpura for bringing back Malti Devi to her matrimonial home. In other words, there is not even a whisper in her initial statement, which formed the basis of FIR (Ex.DA) that appellant Dipak Kumar ever came to her house or took Malti Devi to Kunjpura. No doubt, while appearing as PW2 in Court, she has considerably improved her version and stated that the appellant also came to her village and thereafter his parents also came there and took Malti Devi to Kunjpura. If the appellant had actually visited the house of complainant in village Randoli to take Malti Devi to Kunjpura alongwith his parents, in that eventuality, the complainant would have naturally so mentioned in her initial statement, which formed the basis of FIR (Ex.DA). That means, the name of appellant Dipak Kumar was subsequently added after due consultation and deliberations, in order to falsely implicate him. Therefore, no implicit reliance can be placed on her self serving contradictory and improved statement in this relevant connection. The remaining evidence is inadmissible being hearsay.
27. Not only that, there is not an iota of evidence on record even to suggest remotely that how, when and in what manner, the appellant had the knowledge, intention/mens rea or he actually abetted Vijay Kumar to commit CRA No.550-SB of 2003 -11- suicide. The crux of the prosecution evidence emitting from the record is that the parents, appellant and her other relatives took Malti Devi to their village Kunjpura on 13.9.1992. No evidence, muchless cogent, is forth coming on record even to suggest remotely that the appellant has, in any way, met Vijay Kumar at Kunjpura. Moreover, according to PW7 Amar Singh that on the date of occurrence, he noticed that Vijay Kumar (deceased) and Master Ram Chander were quarreling with each other in front of his (Ram Chander) house at Kunjpura. He has not even mentioned the name of appellant that he was also present there at the relevant time.
28. Likewise, assuming for the sake of argument (though not admitted) that if appellant Dipak Kumar had accompanied his parents to village Randoli and brought Malti Devi to village Kunjpura, even then, no offence as contemplated u/s 306 IPC is made out against him in the absence of any other evidence. The mere wear & tear of life, general matrimonial disputes between the parties or other relatives in the ordinary course of life, to my mind, are not at all sufficient to attract the indicated provisions in the absence of mens rea to commit a particular offence. The word uttered in the fit of anger or emotion without intending the consequences to actually follow cannot be said to be instigation. If the aforementioned acts, without mens rea, are held to be an offence u/s 306 IPC, then, there would be no end of anything and no body would escape from such false accusation. There should be intention to provoke, incite or encourage to do an act by the accused, which is miserably lacking in the instant case.
29. This is not the end of the matter. As depicted here-in-above that all the allegations of harassment & dispute with the deceased, oozing out from the evidence on record, are assigned to main accused Malti Devi and her parents. The trial Judge has disbelieved the prosecution version, relatable to them and acquitted main accused Malti Devi, her mother Shakuntla Devi and other relatives, but strange enough, on the basis of lesser set of evidence, the present appellant was CRA No.550-SB of 2003 -12- convicted & sentenced by the trial Court. The reasons recorded by the trial Court to acquit the indicated main accused are more deeply applicable to the case of the appellant, but it has deeply erred in convicting & sentencing him without any convincing, reliable evidence and without assigning any cogent reasons in this regard.
30. There is yet another aspect of the matter, which can be viewed from entirely a different angle. Appellant Dipak Kumar has produced on record the birth certificate issued by the Central Board of Secondary Education (Ex.DX), which indicates that his date of birth is 23.6.1976. In copy of passport (Annexure P3), the date of birth of the appellant is also so mentioned as 23.6.1976. Meaning thereby, he was a juvenile/child at the time of occurrence. Although this plea was raised by him during the course of hearing before awarding the sentence, but the trial Judge has just ignored the certificate (Ex.DX) only on the vague ground that it was issued by the Central Board of Secondary Education. Such certificate is admissible under Rule 12 of the rules framed under The Juvenile Justice (Care and Protection of Children) Act, 2000 (hereinafter to be referred as "the Act").
31. Here to me, the trial Judge slipped into a deep legal error in this respect. It is not a matter of dispute that the appellant has produced on record copies of certificate (Ex.DX) and passport (Annexure P3), wherein his date of birth is shown as 23.6.1976. If the genuineness or validity of such certificate (Ex.DX) has not at all been disputed by the prosecution, then, the trial court ought to have accepted the birth certificate (Ex.DX) of the appellant, determined his age and then to pass appropriate orders in this behalf. Once prima facie, it is established that the appellant was juvenile at the relevant time, then it is highly improbable to believe that he had the requisite knowledge, intention/mens rea or actually aided and abetted Vijay Kumar to commit suicide. Moreover, since the petitioner was juvenile at the time of commission of offence in question, so, the CRA No.550-SB of 2003 -13- trial stood vitiated, in view of the provisions of the (special) Act.
32. Therefore, if the high improbability of prosecution version, major improvements, contradictions in its evidence, if the facts of lack of all essential ingredients of offence punishable under section 306 IPC, the factum of acquittal of main accused, insufficiency of evidence against appellant Dipak Kumar, his age, totality of indicated other facts and circumstances, emanating from the evidence on record, as discussed here-in-above, are put together and scrutinized, in the right perspective, then, to my mind, the conclusion is inescapable that the evidence produced on record by the prosecution falls short as is required to prove the criminal charge under Section 306 IPC, which entails the benefit of doubt and acquittal to the appellant as well in the obtaining circumstances of the case.
33. No other point, worth consideration, has either been urged or pressed by the learned counsel for the parties.
34. In the light of aforesaid reasons, the instant appeal is hereby accepted. Consequently, the impugned judgment of conviction & order of sentence are set aside. Having extended the benefit of doubt, appellant Dipak Kumar is acquitted of the charges framed against him.
35. Needless to mention that the natural consequences will follow accordingly.
13.8.2012 (Mehinder Singh Sullar)
AS Judge
Whether to be referred to reporter? Yes/No