Himachal Pradesh High Court
State Of Himachal Pradesh vs Kushal Kumar & Anr on 1 July, 2024
Bench: Tarlok Singh Chauhan, Sushil Kukreja
IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA
Cr.MP(M) No. 3157/2023
Decided on : 1.7.2024
State of Himachal Pradesh ....Applicant
.
Versus
Kushal Kumar & anr. ....Respondents
Coram:
The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge.
The Hon'ble Mr. Justice Sushil Kukreja, Judge.
Whether approved for reporting?1 No
For the Appellant: Mr. I.N. Mehta, Sr. Addl. A.G. with
Ms. Sharmila Patial, Sr. Addl.
A.G. and Mr. J. S. Guleria,
r Dy.A.G.
For the Respondents: Mr. Jagmohan Singh Chandel,
Advocate.
__________________________________________________________________
Justice Tarlok Singh Chauhan, Judge (oral)
Aggrieved by the acquittal of the respondents for the commission of offence punishable under Section 306 read with Section 34 of the Indian Penal Code (hereinafter referred to as the 'IPC'), the State has filed the instant appeal.
2 Briefly stated facts of the case are that on 6.7.2019, Incharge, Police Post, Tauni Devi, gave an information at the Police Station that a woman had been brought to District Hospital Hamirpur for treatment and has 1 Whether reporters of the local papers may be allowed to see the judgment? Yes.
::: Downloaded on - 04/07/2024 20:30:09 :::CIS 2expired. On the basis of this information, PW10 Bodh Raj, Investigating Officer along with Lady Constable Saroj, Constable Kulwinder and HHG Ranjit Singh reached Govt.
.
Hospital Hamirpur. The dead body of deceased was lying in the mortuary and photographs were clicked. The dead body was examined by LC Saroj and I.O filled in form No. 25:35 Ex.
PW10/A and form No. 25:39 Ex. PW10/B. The post-mortem report of the deceased Ex. PX-1 was also obtained.
3 The viscera etc were preserved by the Medical Officer in the Hospital. The complainant Sonu Devi gave written complaint Ex. PW1/A in which she stated that her sister-in- law Kiran Bala had informed her that her husband Kushal Chand and her mother-in-law Shakuntla Devi had been harassing her for the last few years. On 05.07.2019, at about 6.18 P.M., Kiran Bala called her and disclosed to her that she was being beaten up by her husband and mother-in-
law Shakuntla Devi and she should come and save her. Later on she came to know that Kiran Bala has expired at night by committing suicide. She suspected that Kiran Bala was forced to commit suicide by the respondents.
4 The I.O made an endorsement on the complaint Ex.
PW10/C and sent it through HHG Ranjit Singh to the Police ::: Downloaded on - 04/07/2024 20:30:09 :::CIS 3 Station for registration of an FIR and accordingly, FIR Ex.
PW7/A under Section 306 read with Section 34 IPC came to be registered. The dead body of the deceased after post-mortem .
was handed over to family members of the deceased vide memo Ex.PW10/D. The I.O thereafter conducted the investigation and recorded the statements of witnesses as per their respective versions. Spot map Ex. PW10/E was prepared on the demarcation of the respondent Kushal Kumar. The viscera alongwith sample seal of' RHH' was deposited with MHC, Police Station Sadar. r 5 During investigation, marriage certificate Ex.
PW4/A and MLC Ex.PW6/A were obtained. The CDRs of deceased and the complainant alongwith CAF, Ex. PX-2 and Ex. PX-3 and the certificate under Section 65B of the Indian Evidence Act Ex. PX-4 were also obtained. The I.O. prepared the CDR analysis report, Ex. PW10/E. The respondents were arrested and subsequently released on bail. The viscera result Ex. PW7/F and final opinion of the Medical officer were obtained.
6 A prima facie case for the commission of offence punishable under Section 306 IPC read with section 34 IPC was made out against the respondents and charges were ::: Downloaded on - 04/07/2024 20:30:09 :::CIS 4 framed against them to which they pleaded not guilty and claimed trial.
7 The prosecution in order to bring home the guilt of .
the respondents examined as many as 10 witnesses.
Thereafter, the respondents were examined under Section 313 Cr.P.C., wherein they pleaded innocence and claimed false implication. They were also called upon to enter into their defence but they did not lead any evidence in their defence.
8 The learned trial court, after evaluating the oral as well as documentary evidence, acquitted the respondents, as aforesaid, hence the instant appeal.
9 It is vehemently contended by the learned Additional Advocate General that the findings recorded by the learned trial court are perverse and, therefore, deserve to be set aside. On the other hand, the learned counsel for the respondent would vehemently argue that the findings recorded by the learned trial court are based on correct appreciation of oral as well as documentary evidence and cannot be faulted with, therefore, call for no interference.
10 We have given our thoughtful consideration to the submissions made at the Bar and have also gone through the ::: Downloaded on - 04/07/2024 20:30:09 :::CIS 5 judgment of the learned trial Court as well as the evidence on record.
11 First of all, we would reiterate the principles laid .
down by the Hon'ble Supreme Court, governing the scope of interference by the High Court in an appeal filed by the State for assailing the acquittal of the accused and the findings recorded by the learned trial Court.
12 In Rajesh Prasad vs. State of Bihar and another (2022) 2 SCC 471, the three Judge Bench of the Hon'ble Supreme Court encapsulated the legal position covering the field and after considering various earlier judgments held as under:-
"28. After referring to a catena of judgments, this Court culled out the following general principles regarding the powers of the appellate court while dealing with an appeal against an order of acquittal in the following words:
"42. From the above decisions, in our considered view, the following general principles regarding powers of the appellate court while dealing with an appeal against an order of acquittal emerge:
(1) An appellate court has full power to review, reappreciate and reconsider the evidence upon which the order of acquittal is founded.
(2) The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate court on the evidence before it may reach its own conclusion, both on questions of fact and of law.::: Downloaded on - 04/07/2024 20:30:09 :::CIS 6
(3) Various expressions, such as, "substantial and compelling reasons", "good and sufficient grounds", "very strong circumstances", "distorted conclusions", "glaring mistakes", etc. are not intended to curtail extensive powers of an appellate court in an appeal against acquittal. Such phraseologies are more in the nature of "flourishes of language" to emphasise the .
reluctance of an appellate court to interfere with acquittal than to curtail the power of the court to review the evidence and to come to its own conclusion.
(4) An appellate court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court.
(5) If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court."
13 Further, in H.D. Sundara and others vs. State of Karnataka (2023) 9 SCC 581, the Hon'ble Supreme Court summarized the principles governing the exercise of Aappellate jurisdiction, while dealing with an appeal against acquittal under Section 378 Cr.P.C. The relevant paragraphs No. 8 to 10 of the judgment are reproduced as under:-
"8. In this appeal, we 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, 'Cr.P.C.'). The principles which ::: Downloaded on - 04/07/2024 20:30:09 :::CIS 7 govern the exercise of appellate jurisdiction while dealing with an appeal against acquittal under Section 378 of Cr.P.C. can be summarised 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 re-appreciate the oral and documentary evidence;
8.3. The Appellate Court, while deciding an appeal against acquittal, after re-appreciating the evidence, is required to consider whether the view taken by the Trial Court is a 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 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 ::: Downloaded on - 04/07/2024 20:30:09 :::CIS 8 the accused was established beyond a reasonable doubt. Only by 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.
10. There is one more aspect of the matter. In many cases, the learned Trial Judge who eventually passes the order of acquittal has an occasion to record the oral testimony of all material witnesses. Thus, in such cases, the Trial Court has the additional advantage of closely observing the prosecution witnesses and their demeanour. While deciding about the reliability of the version of prosecution witnesses, their demeanour remains in the back of the mind of the learned Trial Judge. As observed in the commentary by Sarkar on the Law of Evidence, the demeanour of a witness frequently furnishes a clue to the weight of his testimony. This aspect has to be borne in mind while dealing with an appeal against acquittal."
14 Thus, it is beyond the pale of doubt that the scope of interference by an Appellate Court for reversing the judgment of acquittal rendered by the learned trial Court has to be exercised within the four corners of the following principles:-
a) That the judgment of acquittal suffers from patent perversity;
b) That the same is based on misreading/omission to consider material evidence on record;
c) That no two views are possible and only the view consistent with the guilt of the accused is possible from the evidence available on record.::: Downloaded on - 04/07/2024 20:30:09 :::CIS 9
d) The Appellate Court in order to interference with the judgment of acquittal would have to record pertinent findings on the above factors, if it is inclined to reverse the judgment of acquittal rendered by the trial Court."
.
15 Equally settled is the proposition that it is not the duty of the Appellate Court when it agrees with the view of the trial Court on the evidence to repeat the narration of the evidence or to reiterate the reasons given by the trial Court, expression of general agreement with reasons given by the Court, the decision of which is under repeal, would ordinarily suffice (Refer:
r Girijanandini Devi vs. Rabindernandini Choudhary AIR 1967 SC 124).
16 Before we advert to the merits of the case, it will be necessary to refer to the statutory provisions of offence, for which, the respondents have been charge sheeted.
17 Section 306 IPC reads as under:-
"306. Abetment of suicide,- if any person commits suicide, whoever abets the commission of such suicide, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine."
18 While analyzing the provisions of Section 306 IPC along-with the definition of abetment under Section 107 IPC, the Hon'ble Supreme Court in Mariano Anto Bruno and ::: Downloaded on - 04/07/2024 20:30:09 :::CIS 10 another vs. Inspector of Police AIR 2022 SC 4994, has observed in paras 23 to 26 as under:-
"23. Abetment is defined under Section 107 of IPC which reads as under:-
.
"107. Abetment of a thing:- A person abets the doing of a thing, who-
First- Instigates any person to do that thing; or Secondly- Engages with one or more other person or persons in any conspiracy for the doing of that thing, if an act or illegal omission takes place in pursuance of that conspiracy, and in order to the doing of that thing; or Thirdly- Intentionally aids, by any act or illegal omission, the doing of that thing.
Explanation 1- A person who by wilful misrepresentation, or by wilful concealment of a material fact which he is bound to disclose, voluntarily causes or procures, or attempts to cause or procure, a thing to be done, is said to instigate the doing of that thing.
Explanation 2- Whoever, either prior to or at the time of the commission of an act, does anything in order to facilitate the commission of that act, and thereby facilitate the commission thereof, is said to aid the doing of that act."
24. While analyzing the provisions of Section 306 IPC along with the definition of abetment under Section 107 IPC, a two-Judge Bench of this Court in Geo Varghese Vs. State of Rajasthan and Another 5 has observed as under:-
"13. In our country, while suicide in itself is not an offence as a person committing suicide goes beyond the reach of law but an attempt to suicide is considered to be an offence under Section 309 IPC. The abetment of suicide by anybody is also an offence under Section 306 IPC. It would be relevant to set out Section 306 of the IPC which reads as under:-::: Downloaded on - 04/07/2024 20:30:09 :::CIS 11
"306. Abetment of suicide. --If any person commits suicide, whoever abets the commission of such suicide, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine."
14. Though, the IPC does not define the word 'Suicide' .
but the ordinary dictionary meaning of suicide is 'self-
killing'. The word is derived from a modern latin word 'suicidium' , 'sui' means 'oneself' and 'cidium' means 'killing'. Thus, the word suicide implies an act of 'self- killing'. In other words, act of death must be committed by the deceased himself, irrespective of the means adopted by him in achieving the object of killing himself.
15. Section 306 of IPC makes abetment of suicide a criminal offence and prescribes punishment for the same.
16. The ordinary dictionary meaning of the word 'instigate' is to bring about or initiate, incite someone to do something. This Court in the case of Ramesh 5 2021 SCC OnLine SC 873 Kumar Vs. State of Chhattisgarh1 has defined the word 'instigate' as under:-
"Instigation is to goad, urge forward, provoke, incite or encourage to do an act."
17. The scope and ambit of Section 107 IPC and its co- relation with Section 306 IPC has been discussed repeatedly by this Court. In the case of S.S.Cheena Vs. Vijay Kumar Mahajan and Anr6, it was observed as under:-
"Abetment involves a mental process of instigating a person or intentionally aiding a person in doing of a thing. Without a positive act on the part of the accused to instigate or aid in committing suicide, conviction cannot be sustained. The intention of the legislature and the ratio of the cases decided by the Supreme Court is clear that in order to convict a person under Section 306 IPC there has to be a clear mens rea to commit the offence. It also requires an active act or direct act which led the deceased to commit suicide seeing no option and that act must have been intended to push the deceased into such a position that he committed suicide."::: Downloaded on - 04/07/2024 20:30:09 :::CIS 12
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 I.P.C. 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 6 (2010) 12 SCC 190 7 (2019) 3 SCC 315 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 I.P.C."
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. Vs. State of Haryana 8 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 8 (2019) 17 SCC 30 and reiterated by this Court in the decisions ::: Downloaded on - 04/07/2024 20:30:09 :::CIS 13 above-referred, instigation means to goad, urge forward, provoke, incite or encourage to do an act. If the persons who committed suicide had been 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."
19 In order to bring a case within the purview of Section 306 IPC, there must be a case of suicide and in the commission of the said offence, the person who is said to have abetted the commission of suicide must have played an active role by an act of instigation or by doing certain acts to facilitate the commission of suicide. Therefore, the act of abetment by the person charged with the said offence must be proved and ::: Downloaded on - 04/07/2024 20:30:09 :::CIS 14 established by the prosecution before he could be convicted under Section 306 IPC.
20 In all crimes, mens rea has to be established. To .
prove the offence of abetment, as specified under Section 107 of the IPC, the state of mind to commit a particular crime must be visible, to determine the culpability. In order to prove mens rea, there has to be something on record to establish or show that the respondents herein had a guilty mind and in furtherance of that state of mind, abetted the suicide of the deceased. The ingredient of mens rea cannot be assumed to be ostensibly present, but has to be visible and conspicuous. Proceeding with the above understanding of law and applying the ratio to the facts of the present case, what is apparent is that no overt act or illegal omission is seen from the respondents' side, as would be evident from the following discussion.
21 Bearing in mind the aforesaid explosion of law, now it would be necessary to refer to the evidence that has come on record.
22 PW1 Sonu Devi, who is the complainant in the instant case and also happens to be sister-in-law of the deceased, while appearing in the witness box has not at all supported the prosecution case and was rather declared hostile ::: Downloaded on - 04/07/2024 20:30:09 :::CIS 15 by the learned Public Prosecutor. In her cross-examination conducted by the defence counsel, she admitted that at the time when they reached hospital, the police asked them about .
the incident and they had refused to lodge any complaint. She further admitted that it was later on in heat of passion that she lodged the complaint.
23 PW2 Lata Kumari is sister of the deceased and she too has not supported the prosecution case and like PW1, she was also declared hostile. In her cross-examination, she admitted that she had given statement to the police in the heat of moment and now she did not want to press the case.
24 PW3 Kashmir Singh, who is witness from the locality, too has not supported the prosecution version and was declared hostile. In his cross-examination, he stated that some misunderstanding had taken place between the parties in the year 2017-18 in his presence. He further stated that he had not disclosed the facts to the police which he stated on the date of his examination in the Court. He further admitted that no documents were prepared in his presence.
25 PW4 Raksha Pathania, who happens to be the former Pradhan of Gram Panchayat Kathiania, stated that some matrimonial dispute between the deceased and the ::: Downloaded on - 04/07/2024 20:30:09 :::CIS 16 respondent Kushal Kumar had been reported to her and was resolved and the deceased was sent back to her matrimonial house. She too was declared hostile and in her cross-
.
examination by the defence counsel, she stated that the alleged dispute was not at all reported to the Panchayat. She had not told the deceased or her parents to give in writing to the Panchayat . She could not tell the date, day and time regarding visit of the deceased to her. She admitted that the deceased had not told reasons of harassment by her mother-in-law and beatings by husband. She could not tell the date, day and time of the alleged compromises.
26 PW10 SI Bodh Raj, Investigating Officer, has admitted in his cross-examination that there was no record or evidence available in the village with respect to alleged maltreatment to the deceased on the part of the respondents.
27 Thus, in such circumstances, the learned trial court had no other option but to conclude that the prosecution has miserably failed to establish guilt of the respondents beyond all reasonable doubts.
28 This assumes significance in the background that the marriage between the parties had been solemnized about 15 years back prior to incident on 5.8.2004 as per certificate, ::: Downloaded on - 04/07/2024 20:30:09 :::CIS 17 Ext. PW4/A and it has also come on record that couple were having two children. There is no evidence or previous complaint having been filed by the deceased against the respondents.
.
29 That apart, it has also come on record that father-
in-law of the deceased had expired and the deceased was disturbed for not getting entire post death amount of insurance of her father-in-law.
30 Now as regards complaint, Ext. PW1/A, which could be termed to be incriminating and on the basis of which FIR, Ext. 7/A came to be registered, as observed above, r the complainant along with sister of the deceased has not at all supported the case of the prosecution and has been declared hostile. Therefore, in such circumstances, FIR under Section 154 Cr.P.C. cannot lead the case of the prosecution any further as it is more than settled that an FIR is not substantive piece of evidence and can only be used to corroborate the informant under Section 157 of Indian Evidence Act or to contradict her under Section 145 of the Indian Evidence Act in case the informant appears as a witness under trial. Complainant Ext.
PW1 has categorically stated that she had filed the complaint on the heat of moment and did not press the same.
::: Downloaded on - 04/07/2024 20:30:09 :::CIS 1831 This Court is not inclined to interfere with the findings arrived at by the learned trial Court, given the fact that the State is not in a position to show any evidence worth the .
name to take contrary view in the matter than of the learned trial Court.
32 The State has miserably failed to establish that the approach of the trial Court is vitiated by some manifest or illegal error and the decision of the learned trial Court is against the material and evidence on record.
33 In this view of the matter, we are in agreement with the reasons recorded by the learned trial Court and in our considered opinion, the impugned judgment is just, legal and proper, therefore, warrants no interference by this Court.
34 Accordingly, we find no merit in the instant application and the same is dismissed. Consequently, leave to appeal is rejected, so also the pending application(s), if any.
35 Send down the records.
(Tarlok Singh Chauhan) Judge (Sushil Kukreja) 1.7.2024 Judge (pankaj) ::: Downloaded on - 04/07/2024 20:30:09 :::CIS