Punjab-Haryana High Court
Daya Chand vs State Of Haryana And Others on 3 December, 2013
Author: Ritu Bahri
Bench: Ritu Bahri
Crl. Misc. No. A-510-MA of 2012 (O&M) 1
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
Crl. Misc. No. A-510-MA of 2012 (O&M)
Date of decision: 03.12.2013
Daya Chand
...Applicant-Appellant
Versus
State of Haryana and others
...Respondent
CORAM : HON'BLE MS JUSTICE RITU BAHRI
Present: Ms. Sheenu Khanna, Advocate,
for Mr. Gagan Bajaj, Advocate,
for the applicant-appellant.
1. To be referred to the Reporters or not?
2. Whether the judgment should be reported in the Digest?
RITU BAHRI, J.
Challenge is to the judgment dated 28.03.2012 passed by the Additional Sessions Judge, Nuh, whereby accused-respondent Nos. 2 to 5 have been acquitted of the charges framed against them under Sections 306/34 IPC.
Brief facts of the case are that on 13.10.2008 ASI Vijay Anand received a VT message that Beena wife of Daya Chand was admitted in Om Hospital, Palwal. Thereafter, he along with other police officials reached Om Prasher Ajay 2013.12.06 10:38 I attest to the accuracy and integrity of this document High Court Chandigarh Crl. Misc. No. A-510-MA of 2012 (O&M) 2 Hospital, Palwal and obtained the MLR and rukka. Thereafter, the police party was informed that Beena had expired and her dead body was lying in General Hospital, Mandikhera. Thereafter, the said police party reached at General Hospital, Mandikhera and recorded the statement of Nunat Ram to the effect that he is having five children. His elder daughter namely Beena was married to Daya Chand in the year 1997. Out of this wed-lock, five children were born. The wife of her brother-in-law Ram Chand (respondent No.5) was burnt to death. With regard to the said incident, a case was also registered at Police Station Punhana. Aforesaid Ram Chand was again married to Bhagwati daughter of Chote Lal, resident of Punhana. However, Bhagwati also left him and since then, Ram Chand was having a suspicion that Beena had instigated his wife to leave him. It was alleged that Ram Chand, Amar Chand, Biro and Ramo-respondent Nos. 2 to 5 used to beat Beena by levelling allegations against her. A Panchayat was also convened in this regard. It was further alleged that his son-in-law Daya Chand and daughter Beena were beaten by the aforesaid accused in Panchayat. On the intervening night of 12.10.2008, his daughter-Beena had committed suicide by consuming poison due to the harassment given to her by the accused- respondents. She was shifted to Om Hospital, from where she was referred to Delhi. However, she died in the way. In this background, the FIR was registered and challan under Section 306/34 IPC was presented against the accused-respondent Nos. 2 to 5.
After presentation of the challan, charge under Section 306 read with 34 IPC was framed against the accused, to which they pleaded not guilty and claimed trial.
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In order to prove its case, the prosecution examined SI Shish Ram (PW-1), Nunat Ram-complainant (PW-2), Daya Chand (PW-3), Dr. Naseem Ahmed (PW-4), ASI Bhanwar Singh (PW-5), Constable Ishwar Singh (PW-6), EHC Nawal Kishore (PW-7), SI Vijay Anand (PW-8) and Dr. L.K. Verma (PW-9). Thereafter, the evidence of the prosecution was closed.
Statements of accused-respondent Nos.2 to 5 were recorded under Section 313 Cr.P.C., wherein entire incriminating evidence appearing against them, was put to them. However, they denied the same and pleaded false implication. In defence, the accused examined Sahid Khan (DW-1).
Nunat Ram-complainant (PW-2), who is father of the deceased, deposed that his daughter Beena was married with Daya Chand son of Bhajani in the year 1997. Ram Chand-respondent No.5, jeth of his daughter, had lost his wife due to burn injuries in the year 2000. He got married again and his second wife also left him. He along with other accused, started harassing and beating his daughter-Beena without any reason. Panchayat was convened and they tried to make the accused-respondent Nos. 2 to 5 to understand, but to no avail. On 12.10.2008, his daughter-Beena consumed poison due to harassment caused by the accused and died. She made a telephonic call to her mother on 12.10.2008 and told that she would die because of the behaviour of the accused.
Daya Chand (PW-3), who is husband of the deceased, deposed that his brother Ram Chand suspected that his wife-Bhagwati had left him because of Beena. He (Ram Chand) used to beat his (Daya Chand's) wife in his absence. When he made a complaint about this to his family members, they threatened him. Beena was given beatings by the accused on 12.10.2008 Prasher Ajay 2013.12.06 10:38 I attest to the accuracy and integrity of this document High Court Chandigarh Crl. Misc. No. A-510-MA of 2012 (O&M) 4 and when he came back from his duty at 9:00 P.M., she consumed poison. At the time of incident, he was residing in village Rehpua. He shifted his wife- Beena to Diamond Hospital, Palwal, from where, she was referred to Delhi, but she died in the way.
Dr. Naseem Ahmed, Medical Officer, Mandikhera (PW-4) deposed that on 14.10.2008, he conducted postmortem examination on the dead body of Beena wife of Daya Chand. The dead body was brought by Constable Nawal Kishore.
SI Vijay Anand (PW-8), who was Investigating Officer of the case, deposed that on 13.10.2008, Beena was admitted in Om Hospital, Palwal, in a poisonous condition. He made an application (Ex.PF), upon which, the doctor made his endorsement (Ex.PF/1) to the effect that the injured was not fit to make a statement. At 4:00 P.M., he got an information that she had died. Thereafter, he recorded the statement of Nunat Ram, father of the deceased and made his endorsement (Ex.P/3).
Dr. L.K. Verma, Medical superintendent, Om Hospital, Palwal (PW-9), deposed and testified Rukka as Ex.PW9/A and MLC of Beena as Ex.PW9/B. In defence, accused-respondent Nos. 2 to 5 examined Sahid Khan as DW-1, who deposed that he was Sarpanch of village Rehpua since 2005 to 2010. The house of Daya Chand is situated near his house. No Panchayat regarding any quarrel was ever convened in the village. There had been no quarrel between the deceased and Daya Chand and other accused in his presence. Accused and Daya Chand were residing separately. The house of Amar Chand is situated at a distance of 400 feet from the house of Daya Prasher Ajay 2013.12.06 10:38 I attest to the accuracy and integrity of this document High Court Chandigarh Crl. Misc. No. A-510-MA of 2012 (O&M) 5 Chand. Similarly, house of Ram Chand is situated at a distance of 100 feet.
Learned counsel for the applicant-appellant has argued that the trial Court has not correctly appreciated the evidence led by the prosecution. Nunat Ram-complainant (PW-2) as well as Daya Chand (PW-3), husband of the deceased, had deposed that Beena was being repeatedly given beatings and harassment by all the accused. Specific allegation of beating has been made against Ram Chand (jeth) of the deceased, on the date of the incident i.e. 12.10.2008. Beena had consumed poison and made a telephonic call to her mother that she will died because of the behaviour of the accused. She had also informed her husband Daya Chand (PW-3), on his return from duty on 12.10.2008, that accused had given beatings to her. She expressed her desire not to live and thereafter, at 9:00 P.M., consumed poison. The fact that she had consumed poison is proved from the report of FSL (Ex.PX).
The trial Court had examined the deposition of Nunat Ram- complainant (PW-2), in the context of complaint (Ex.PA), which was given to the police. In his deposition, he stated that Beena had made a telephonic call to her mother, informing her that she would die because of the behaviour of the accused. However, in the complaint, this fact has not been mentioned. Moreover, mother of the deceased did not appear in the witness box to substantiate this fact that her daughter had made a telephonic call to her. On the other hand, daya Chand (PW-3), in his cross-examination, has deposed that his wife-Beena had intimated her father about consuming of the poison on 12.10.2008. Therefore, the contradiction in the statement made by Nunat Ram (PW-2) and Daya Chand (PW-3) as well as in the complainant (Ex.PA) makes the case of the prosecution doubtful. In the complaint (Ex.PA), it is Prasher Ajay 2013.12.06 10:38 I attest to the accuracy and integrity of this document High Court Chandigarh Crl. Misc. No. A-510-MA of 2012 (O&M) 6 nowhere mentioned that accused-respondent Nos. 2 to 5 gave beatings to the deceased on 12.10.2008. The narration of the above facts are conspicuously missing in the deposition of Nunat Ram (PW-2). Moreover, Daya Chand (PW-3), deposed that accused had given beatings to his wife on 12.10.2008 and this fact was narrated to him by his wife when he came back from his duty. While recording statement under Section 161 Cr.P.C. (Ex.DA), he did not depose about the beating on 12.10.2008. Hence, this was an improvement, made by him while apeparing as PW-3.
After going through the evidence, it can be safely concluded that neither the deceased had given a telephonic call to her mother on 12.10.2008 nor she was given beatings by the accused, as stated by Daya Chand (PW-3).
As per the investigation, carried out by SI Vijay Anand (PW-8), deceased-Beena was residing separately along with her husband and children from the accused persons and the accused never gave beatings to her. Furthermore, as per the deposition of Sahid Khan, Sarpanch (DW-1), the deceased and the accused had no quarrel at any point of time. He was a Sarpanch of the village w.e.f. 2005 to 2010. He further deposed that no such Panchayat regarding any quarrel was ever convened in the village. Therefore, the assertion of Nunat Ram (PW-2) that accused used to harass his daughter and that a Panchayat had been convened in the village, in which the whole story was narrated to them, stands falsified.
In the background of the above contradictions in the statements of Nunat Ram (PW-2), Daya Chand (PW-3) and SI Vijay Anand (PW-8), we shall now examine, as to "whether the essential ingredients of Section 107 IPC were made out or not."
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Section 107 of the IPC is reproduced 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 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 facilitates the commission thereof, is said to aid the doing of that act."
The Hon'ble Supreme Court in case M. Mohan Vs. State represented by the Deputy Superintendent of Police, 2011 (3) SCC 626, had an occasion to examine a case under Section 306 IPC, wherein the wife had committed suicide and left a suicide note, alleging that she had been asked to bring a car from her family members. She and her children were deprived of to use the family car of the in-laws' family on 14.01.2005. She committed suicide on 18.01.2005. It was held that there was no proximate link between the incident of 14.01.2005, when the deceased was denied permission to use the car, with the factum of suicide, which had taken place on 18.01.2005. These kind of incidents are common in joint families and no abetment under Section 107 IPC was made out and the accused were not even remotely connected with the offence under Section 306 IPC.
In Sanju alias Sanjay Singh Sengar Vs. State of M.P., 2002 (5) SCC 371, the Hon'ble Supreme Court has held that a quarrel had taken place between appellant and deceased in which appellant was said to have told the deceased to "go and die". Deceased was found dead two days later. It was Prasher Ajay 2013.12.06 10:38 I attest to the accuracy and integrity of this document High Court Chandigarh Crl. Misc. No. A-510-MA of 2012 (O&M) 8 held that suicide was note proximate to the quarrel, though the deceased was named in the suicide note. Hence, suicide was ot the direct result of the quarrel when the appellant used abusive language and told the deceased to "go and die." Even though, theappellant was named specifically in the suicide note, the proceedings under Section 306 IPC were quashed. On the same issue, the Hon'ble supreme Court has passed another judgment in Bhagwan Das Vs. Kartar Singh and others, 2007 (11) SCC 205, wherein it has been held that mere harassment of wife by her husband or in-laws, due to some dispute and differences without anything more, pursuant to which if wife commits suicide, it will not attract Section 306 read with Section 107 IPC.
In case S.S.Cheena Vs. Vijay Kumar Mahajan and another, 2010 (12) SCC 190, the Hon'ble Supreme Court had an occasion to examine a case under Section 306 IPC, where deceased was an University student. A fellow student filed a complaint against the deceased that deceased had stolen his mobile telephone. Enquiry was entrusted to the accused, who was a Security Officer. Deceased committed suicide and charge against the accused was that the deceased committed suicide due to harassment caused by the accused. Charges were quashed and it was held that conviction merely on the basis of allegation of harassment of deceased is unsustainable in law.
In Sohan Raj Sharma Vs. State of Haryana, 2008 AIR SCW 3202, the Hon'ble Supreme Court has examined a suicide note left by the deceased-wife where she had poisoned her two children and thereafter committed suicide levelling allegation against her husband that her husband is a sexual pervert. Reference has been made to a judgment of Mahinder Singh Vs. State of M.P., 1995 AIR SCW 4570. In paragraph 10 of the Prasher Ajay 2013.12.06 10:38 I attest to the accuracy and integrity of this document High Court Chandigarh Crl. Misc. No. A-510-MA of 2012 (O&M) 9 judgment, while examining Section 107 IPC, it has been held as under:-
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 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 with the abetment is normally linked with the proved offence." The conviction was set aside by holding that the husband had not committed an offence under Section 306 IPC and had not instigated his wife to commit a suicide as per Section 107 IPC.
In the facts of the present case, there are material contradictions in the deposition of Nunat Ram (PW-2), Daya Chand (PW-3) and the contends of Ex.PA. Moreover, mother of deceased-Beena has not appeared in the witness box to depose that she had received a telephonic call from her daughter to the effect that she was about to die. However, it has come on record that the deceased, along with her husband, was residing separately from the family of accused (in-laws). As per deposition of Sahid Khan (DW-
1), who was Sarpanch of the village from 2005 to 2010, there had been no quarrel and no Panchayat was ever convened to settle the dispute. Hence, there was no instigation to the deceased by accused-respondent Nos. 2 to 5, Prasher Ajay 2013.12.06 10:38 I attest to the accuracy and integrity of this document High Court Chandigarh Crl. Misc. No. A-510-MA of 2012 (O&M) 10 which led to the consuming of poison on 12.10.2008. Since no instigation was made out, the benefit of doubt has rightly been extended by the trial Court in favour of accused-respondent Nos. 2 to 5.
In these circumstances, the impugned judgment of acquittal passed by the trial Court, does not require any interference by this Court.
Dismissed.
(RITU BAHRI) 03.12.2013 JUDGE ajp Prasher Ajay 2013.12.06 10:38 I attest to the accuracy and integrity of this document High Court Chandigarh