Delhi District Court
State vs . Kamal Dev S/O Kisho Pandit, on 19 October, 2010
1
IN THE COURT OF SH. SANJEEV AGGARWAL
ADDL. SESSIONS JUDGE-V: ROHINI COURTS: DELHI
SC No.135/08
ID No.02404R0657442007
FIR No.08/2002
U/s 306 IPC
PS Narela
State Vs. Kamal Dev S/o Kisho Pandit,
R/o Village Harnarain Pur,
PS Gobind Pur, Distt. Nawada,
Bihar.
Date of Institution in Sessions Court : 12.12.2007
Date of transfer to this Court : 05.12.2008
Date of Judgment : : 19.10.2010
JUDGEMENT
1. In brief the prosecution story is that on 21.01.2002, a DD No.60B was marked to SI Narender Kumar, who along with Ct. Darshan reached the spot i.e 1376, Panna Paposiyan, Narela, where one Manju got recorded the following statement to him.
'That she was having two children and her husband Harish Kumar Arora was working in Bhagat Gas Agency, Narela, as a State Vs. Kamal Dev PS Narela FIR No.08/02 1-18 2 cylinder supplier and her husband had told her 15 days earlier, and the owner of the said gas agency was one sikh gentleman and store keeper was one Kamal, who were making allegations against him for making manipulations in the gas supply and due to which he was very upset and today at around 5:45 p.m, a telephone call was received from the godown, where her husband was working, which was taken by her dewar Inderjeet and who told her that her husband had consumed tablets of sulphas, as the godown owner and the store keeper Kamal used to harass him, and they used to level false allegations of making manipulation in cylinder supply and due to which he had consumed sulphas and thereafter her husband was taken to Narela Nursing Home, where he died and that he had died due to the harassment, meted out to him by store keeper Kamal and the owner of the said gas agency'.
2. On the said statement, an FIR U/s 306/34 IPC was registered at PS Narela, and the investigations were taken up. Statements of State Vs. Kamal Dev PS Narela FIR No.08/02 1-18 3 the witnesses were also recorded by the I.O.
3. The dead body was removed for postmortem to BJRM Hospital and after the postmortem the dead body was handed over to the relatives of the deceased. No opinion was given in the postmortem report, regarding the cause of death, pending viscera report. The accused Kamal Dev was arrested in this case.
4. However, the other accused was kept in colomn No.2.
5. After the transfer of SI Narender Kumar, investigations were taken up by SI Ashok Kumar, who was also transferred and after his transfer, the investigations were taken up by SI Jaipal Singh, who sent the questioned documents to CFSL Hyderabad, but the same could not be deposited. Thereafter, the said SI was also transferred and the investigations were taken up by SI Ram Chander, who sent the relevant questioned documents to Chandigarh. However, no definite opinion could be obtained from there, regarding the questioned documents.
6. After completion of the investigations, a charge sheet U/s State Vs. Kamal Dev PS Narela FIR No.08/02 1-18 4 306/34 IPC was filed in the court.
7. However, Ld. MM did not summon the accused Sardar Manjeet Singh, mentioned in the colomn No.2 and cognizance was only taken against the accused Kamal Dev, mentioned in colomn No.4.
8. Upon committal of the case to the court to sessions, a charge U/s 306 IPC was framed against the accused Kamal Dev, vide order dt. 30.07.2008, to which he pleaded not guilty and claimed trial.
9. Thereafter, the prosecution in support of its case has examined six witnesses. PW1 is Sh. Sri Narain, who has proved the viscera report, Ex.PW1/A, PW2 is Manju Arora, the complainant, who has turned hostile, PW3 is Inderjeet, brother of the deceased, who has also turned hostile, PW4 is Dr. Ravinder Sharma, Assistant Government Examiner of Questioned Documents, Chandigarh, who has proved his report, regarding the questioned documents, which were sent to him vide report Ex.PW4/A, Ex.PW4/B & Ex.PW4/C, PW5 is Dr. R.K. Punia, autopsy surgeon, who has proved the postmortem report of the deceased, Ex.PW5/A, and has opined that the cause of State Vs. Kamal Dev PS Narela FIR No.08/02 1-18 5 death in this case was due to consumption of substance, containing aluminium phosphide poison, PW6 is SI Narender Kumar, the initial I.O of this case.
10. The rest of the material witnesses were either admitted by the defence or by the prosecution, therefore, they were not examined to cut short the trial.
11. Thereafter, the statement of the accused U/s 313 Cr. PC was recorded, in which the defence of the accused was that he had been falsely implicated in this case, though he was employee of Bhagat Gas Agency. However, the witnesses were false and interested, who had deposed against him. However, he chose not to lead any evidence in defence.
12. I have heard Ld. Counsel for the defence Sh. L.D. Mual and Sh. G.S. Guraya, Ld. Addl. PP for the state.
13. Ld. Defence counsel has argued that in the present case, both the material witnesses of the prosecution, namely, PW2 Manju Arora and PW3 Inderjeet, the wife and brother of the deceased have both State Vs. Kamal Dev PS Narela FIR No.08/02 1-18 6 turned hostile and as per the autopsy surgeon, PW5, the cause of death in this case was due to consumption of aluminium phosphide and that it was not possible to administer aluminium phosphide to any person, against his or her will, and this shows that the death of the deceased had taken place due to self consumption of said poison. He has also argued that the prosecution has failed to prove the alleged suicide note, Ex.PW6/C, as in the report of hand writing expert, Ex.PW4/A, Ex.PW4/B & Ex.PW4/C, nothing has come out to show that the said suicide note was written by the deceased Harish Arora. He has further argued that even if said suicide note is taken as correct, as had been written by the deceased even then no case U/s 306 IPC is made out against the accused, in view of the judgment of the Hon'ble Supreme Court (2010) ACR 203, Gangula Mohan Reddy Vs. State of Andhra Pradesh and relying upon the said judgment, he has argued that in the present case, there was no instigation or intentional aid on behalf of the accused to cause the death of the deceased and the same does not fall within the definition State Vs. Kamal Dev PS Narela FIR No.08/02 1-18 7 of Section 107 of the Indian Penal Code, which defines abetment.
14. On the other hand, Ld. Addl. PP for the state Sh. G.S. Guraya has argued that from the said suicide note Ex.PW6/C, it is clear that the deceased had made the accused responsible for his death, which writing has been proved to be that of deceased vide report of hand writing expert, Ex.PW4/A, Ex.PW4/B & Ex.PW4/C and from the said document itself, the prosecution has been able to prove that there was clear cut abetment and instigation on the part of the accused to cause the death of the deceased and the deceased took the extreme step of taking away his life, due to constant harassment meted out to him by the accused, and accordingly, he has argued that the judgment relied upon by the Ld. Defence counsel was not applicable to the facts and circumstances of the present case.
15. I have gone through the rival contentions.
16. Regarding the offence U/s 306 IPC, the law is well settled, as laid down in various judgments, including the judgment 2007(3) SCC (Cri)701, in which it has been laid down:
State Vs. Kamal Dev PS Narela FIR No.08/02 1-18 8 Section 107 IPC defines abatement of a thing. The offence of abatement is a separate and distinct offence provided in IPC. 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 provoke, 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 State Vs. Kamal Dev PS Narela FIR No.08/02 1-18 9 with the abetment is normally linked with the proved offence.
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 Mahendra Singh v. State of M.P) Merely on the allegation of harassment conviction in terms of Section 306 IPC is not sustainable.
17. Further in a judgment II(2006)DMC 382, the Hon'ble Delhi High Court relied upon the judgment of the Hon'ble Supreme Court in Mahendra Singh Vs. State of M.P.1995 Supp.(3)SCC 731, in which it has been held that :
"The appellant was charged for an offence under Sec. 306 IPC basically based upon the dying declaration of the deceased, which reads as under:
`My mother in law and husband and sister in law(husband's elder brother's wife) harassed me. They beat me and abused me. My husband Mahendra wants to marry a second time. He has State Vs. Kamal Dev PS Narela FIR No.08/02 1-18 10 illicit connections with my sister-in-law. Because of these reasons and being harassed I want to die by burning.' This court, considering the definition of `abetment' under Section 107, IPC, found that the charge and conviction of the appellant for an offence under Section 306 is not sustainable merely on the allegation of harassment to the deceased. This court further held that neither of the ingredients of abetment are attracted on the statement of the deceased".
The Supreme Court further observed in paragraph 12 of the said decision that the word `instigate' denotes incitement or urging to do some drastic or unadvisable action or to stimulate or incite. Presence of mens rea, therefore, is the necessary concomitant of instigation. It is common knowledge that the words uttered in a quarrel or in the spur of the moment can not be taken to be uttered with mens rea. It is in a fit of anger and emotional. The words expressed in the case before the Supreme Court were `to go and die'. As a result State Vs. Kamal Dev PS Narela FIR No.08/02 1-18 11 of such an utterance, the deceased went and committed suicide. Yet, the Supreme Court was of the view that an offence under Section 306, IPC was not made out because there was no element of mens rea.
18. Coming now to the facts of the present case, I find that the case of Mahendra Singh v. Stated of M.P., 1995 Supp.(3) SCC 731, referred to in Sanju @ Sanjay Singh Sengar(supra), is quite apposite. A similar allegation of harassment was made against the in-laws, but that was not considered to fall within the four corners of Section 306 IPC. In that case, there were allegations of beating as well which are absent in the present case. Apart from all this, in the present case, I find that there is no element of mens rea, which is an essential ingredient, even if the allegations, as per the case of the prosecution, were to be taken to be true and correct. In my view, the learned Additional Sessions Judge was entirely wrong in coming to the conclusion that a charge under Section 306 IPC could be framed against the present petitioners. The deceased(Shobha) may State Vs. Kamal Dev PS Narela FIR No.08/02 1-18 12 have been treated harshly and unfairly, if the allegations were to be believed, but, it can not be said that the petitioners instigated, goaded or incited her to commit suicide. There is nothing on record to suggest that the petitioners had the mens rea to drive the deceased (Shobha) to commit suicide.
19. In view of the aforesaid preposition of law laid down by the Hon'ble Supreme Court in the aforesaid judgments, it is clear that to make out an offence U/s 306 IPC, the prosecution has to firstly prove that the person accused of the offence has instigated any person to do that thing. Secondly, the said person engages with one or more persons in any criminal conspiracy for committing of that particular thing. Thirdly, the said person intentionally aids by any act or illegal omission for doing of that particular thing and the word `instigate' literally means to provoke,incite, urge on or bring about by persuasion to do any particular thing by the deceased and that in the cases of alleged abetement of suicide, there must be proof of direct or indirect State Vs. Kamal Dev PS Narela FIR No.08/02 1-18 13 acts of incitement to the commission of offence and the mere fact that the husband treated the wife with cruelty is not enough and merely on the allegations of harassment, conviction U/s 306 IPC can not be sustained.
20. Further, it is settled law laid down in the aforesaid judgment that presence of mens rea is necessary part of instigation and the words "uttered in a quarrel or in the spur or moment can not be taken to have been uttered with mens rea".
21. In the present case PW2, the complainant Manju Arora, the wife of the deceased and PW3, Inderjeet, the brother of the deceased have both turned hostile and have not support the prosecution story, regarding the fact that accused was responsible for the death of the deceased Harish Kumar Arora. Despite lengthy cross-examination by Ld. Addl. PP for the state, nothing was come out in their testimony, which could throw any light, that accused was in any way responsible in abetting the death of the deceased.
22. The prosecution has also relied upon the suicide note allegedly State Vs. Kamal Dev PS Narela FIR No.08/02 1-18 14 written by the deceased, which was found from his pocket at the time of his death. The said suicide note, Ex.PW6/C, has been opined to be bearing the signatures of the deceased by the hand writing expert, PW4 Dr. Ravinder Sharma, who after comparison of the admitted signatures of the deceased and after comparison of the same with the suicide note Ex.PW6/C, came to the conclusion vide his report, Ex.PW4/A, Ex.PW4/B & Ex.PW4/C, that the signatures reading 'Harish' in the enclosed portions stamped and marked Q1/1 and Q2 to Q7 have been written by one and the same person, and he also opined in his report, Ex.PW4/B that 'there is no divergence between questioned signatures. There is no sign of imitation in the production of questioned signatures. All the significant features as occurring in the questioned signatures are found similarly exemplified at one or the other places. The aforesaid similarities between questioned signatures in the writing habits are significant and sufficient and will not accidentally coincide in the signatures of two different persons and when considered State Vs. Kamal Dev PS Narela FIR No.08/02 1-18 15 collectively lead me to the aforesaid opinion of common authorship'.
23. The aforesaid witness has been cross-examined by the Ld. Defence counsel. Though, he stated that prior to the present report, he also gave a report on 05.10.2004, Ex.PW4/E. In the said report, the said hand writing expert had opined that in view of the material sent to him, it was not possible to express any opinion, regarding the authorship of the document Ex.PW6/C and the signatures thereon. However, it appears that later on, he was supplied sufficient material for comparison with Ex.PW6/C, thereby making him to reach a definite conclusion that the hand writing on the suicide note was of deceased only, due to peculiarity in his writing style and other similarities. Consequently, no fault can be found in the same. In any case, the defence has failed to rebut the said hand writing report, by producing any witness of their own to the contrary. Hence, the report of the said hand writing expert, PW4 has been duly proved.
24. The said suicide note, Ex.PW6/C, reads as under:-
State Vs. Kamal Dev PS Narela FIR No.08/02 1-18 16 'I Harish Kumar S/o Jaggan Nath was writing in my consciousness, whatever accounts, were written in my diary were totally correct and the allegations, which had been levelled against me with regard to 17 M.T were incorrect, and one Kamal, godown keeper was responsible for the same. It was correct that I may have done some wrong acts before, but now I was leading a life of rectitude (sharafat), and was making my living by hard work, and Kamal was responsible for my death and now due to his negligence, I am dying.
S/d Harish/02.01.2002'
25. Now, it has to be seen whether the words written in that suicide note attract the Provisions of section 306 IPC, as defined in the definition of abetment U/s 107 IPC.
26. From the plain and simple reading of the words, expressed in the aforesaid suicide note, it cannot be said that accused had instigated deceased Harish Kumar Arora to commit suicide or he had provoked or incited or urged by persuasion or otherwise actuating him State Vs. Kamal Dev PS Narela FIR No.08/02 1-18 17 to commit suicide by his act, direct or indirect. In the present case, the deceased held the accused responsible for the accusations levelled against him for embezzlement in the accounts of the gas agency. Though, he stated that he had not done anything like that. In these circumstances, merely because the accused had levelled certain allegations against the deceased, it cannot be said that the accused abetted or urged him to commit suicide, either directly or indirectly. It has been held in the judgments, discussed above that in the cases of alleged abetment of suicide, there must be proof of direct or indirect acts or incitement to the commission of suicide and it has further been held that presence of mensrea is also essential ingredient to make out a case U/s 306 IPC.
27. From the aforesaid discussion, it does not appear that the accused harassed deceased to such an extent, which left him with no other alternative, but to commit suicide, nor there has been any evidence lead by the prosecution on the record, that there had been incitement, provocation or urge on behalf of the accused, which lead State Vs. Kamal Dev PS Narela FIR No.08/02 1-18 18 the deceased to commit suicide.
28. Consequently, from the aforesaid discussion, prosecution has failed to make out a case U/s 306 IPC, against the accused for which he has been charged.
29. Accordingly, he is acquitted of the charge U/s 306 IPC. His bail bonds are cancelled. Surety stands discharged. Endorsement(s), if any made on the original documents of the accused and the surety stands cancelled. File be consigned to record room.
Announced in the open court (Sanjeev Aggarwal)
On 19.10.2010 Addl. Sessions Judge
Rohini Courts: Delhi.
State Vs. Kamal Dev PS Narela FIR No.08/02 1-18