Himachal Pradesh High Court
State Of Himachal Pradesh vs Raj Kumar Alias Raju on 27 June, 2024
Bench: Tarlok Singh Chauhan, Sushil Kukreja
( 2024:HHC:4072 ) IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.
Cr. Appeal No. 137 of 2014 Reserved on: 25.06.2024 Decided on: 27th June, 2024 .
State of Himachal Pradesh .......Appellant
Versus
Raj Kumar alias Raju ...Respondent
Coram
The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge.
The Hon'ble Mr. Justice Sushil Kukreja, Judge. Whether approved for reporting?1 Yes.
For the appellant: Mr. I.N. Mehta, Sr. Addl. A.G r with Mr. Navlesh Verma, Addl.
A.G and Mr. Raj Negi, Dy. A.G. For the respondent: Mr. Shrawan Dogra, Senior Advocate with Mr. Manish Sharma and Mr. Bharat Thakur, Advocates.
Tarlok Singh Chauhan, Judge Aggrieved by the acquittal of the respondent for the commission of offence punishable under Sections 498A and 306 of the Indian Penal Code (hereinafter referred to as the 'IPC'), the State has filed the instant appeal.
2. Case of the prosecution is that the deceased had solemnized love marriage with the respondent against the wishes of her parents somewhere in the year 2010. The respondent initially kept the deceased well for 6-7 months and 1 Whether the reporters of Local Papers may be allowed to see the judgment? Yes.
::: Downloaded on - 27/06/2024 20:32:23 :::CIS 2( 2024:HHC:4072 ) thereafter started maltreating her on account of demand of dowry, regarding which, she had made complaint to her parents. The parents of the deceased made the respondent to .
understand and paid him Rs.5000/- and sent the deceased back with him but he did not keep his words and again started maltreating the deceased.
3. On 23.08.2011, PW-1 Shiv Ram, father of the deceased received information that his daughter has expired.
Such information was also received in Police Station, Shillai, upon which, PW-9 ASI Balak Ram, SHO, Police Station, Shillai visited the spot and found the dead body of deceased lying there. He conducted inquest over the dead body of the deceased and removed the dead body to CHC, Shillai for conducting post-mortem. PW-2 Dr. A.V. Raghav conducted the post mortem examination of the dead body and after receiving the report of the chemical examiner, Ext. PW-2/C, he gave his opinion Ext.PW-2/D that the deceased died due to consumption of poison i.e. organpchloro insecticide. PW-1 also visited CHC, Shillai where he made statement before PW-9 on the basis of which FIR Ext.PW-7/A was registered in Police Station, Shillai. The police investigated the case in which it was revealed that the respondent had maltreated the deceased as a result of which, she was compelled to commit suicide.
::: Downloaded on - 27/06/2024 20:32:23 :::CIS 3( 2024:HHC:4072 ) Therefore, after completion of the investigation, the police filed the challan under Sections 498A and 306 IPC against the respondent.
.
4. The respondent was charged sheeted for the commission of aforesaid offences but he abjured his guilt and claimed trial, upon this, the prosecution has examined nine witnesses in all and closed its evidence.
5. The respondent was examined under Section 313 Cr.P.C., in which, he has denied the case of the prosecution and pleaded his innocence. He was also called upon to enter his defence, but he did not lead any evidence.
6. The learned trial Court after appreciating the evidence on record, acquitted the respondent and constraining the State to file the instant appeal.
7. It is vehemently argued by Mr. Navlesh Verma, learned Additional Advocate General that the findings recorded by the learned trial Court are perverse and, therefore, deserve to be set aside and the respondent deserves to be convicted for the offences, he has been charged with.
8. On the other hand, Mr. Shrawan Dogra, learned Senior Advocate assisted by Mr. Manish Sharma and Mr. Bharat Thakur, Advocates would urge that there is no perversity in the findings recorded by the learned trial Court ::: Downloaded on - 27/06/2024 20:32:23 :::CIS 4 ( 2024:HHC:4072 ) and being based on evidence, the same does not warrant any interference by this Court as there is double presumption of innocence upon acquittal of the respondent, which need not to .
be interfered with.
9. We have given our thoughtful consideration to the submissions made at the Bar and have also gone through the judgment of the learned trial Court as well as the evidence on record.
10. First of all, we would reiterate the principles laid down by the Hon'ble Apex Court, governing the scope of interference by the High Court in an appeal filed by the State for assailing the acquittal of the accused, the findings recorded by the learned trial Court.
11. In Rajesh Prasad vs. State of Bihar and another (2022) 2 SCC 471, the three Judge Bench of the Hon'ble Apex Court encapsulated the legal position covering the field, after considering various earlier judgments has 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:::: Downloaded on - 27/06/2024 20:32:23 :::CIS 5
( 2024:HHC:4072 ) (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.
(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."
12. Further, in case titled as H.D. Sundara and others vs. State of Karnataka (2023) 9 SCC 581, the Hon'ble Apex Court summarized the principle governing the exercise of Appellate jurisdiction, while dealing with an appeal against acquittal under Section 378 Cr.P.C. The relevant ::: Downloaded on - 27/06/2024 20:32:23 :::CIS 6 ( 2024:HHC:4072 ) 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 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;
documentary evidence;
r to 8.2. The Appellate Court, while hearing an appeal against acquittal, is entitled to re-appreciate the oral and 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 ::: Downloaded on - 27/06/2024 20:32:23 :::CIS 7 ( 2024:HHC:4072 ) evidence, it is of the view that the guilt of 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."
13. 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.
d) The Appellate Court in order to interference with the judgment of acquittal would have to record pertinent ::: Downloaded on - 27/06/2024 20:32:23 :::CIS 8 ( 2024:HHC:4072 ) findings on the above factors, if it is inclined to reverse the judgment of acquittal rendered by the trial Court."
14. Equally settled is the preposition 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: Girijanandini Devi vs. Rabindernandini Choudhary AIR 1967 SC 124).
15. Before we advert to the merits of the case, it will be necessary to refer to the statutory provisions of offences, for which, the respondent has been charged sheeted.
16. Section 498A IPC reads as under:-
"498A. Husband or relative of husband of a woman subjecting her to cruelty. 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 purpose of this section, "cruelty"
means-
(a) any wilful 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.]"
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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 Apex Court in Mariano Anto Bruno and 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 ::: Downloaded on - 27/06/2024 20:32:23 :::CIS 10 ( 2024:HHC:4072 ) 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:-
"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 ::: Downloaded on - 27/06/2024 20:32:23 :::CIS 11 ( 2024:HHC:4072 ) 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."
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 ::: Downloaded on - 27/06/2024 20:32:23 :::CIS 12 ( 2024:HHC:4072 ) 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 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 ::: Downloaded on - 27/06/2024 20:32:23 :::CIS 13 ( 2024:HHC:4072 ) 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 act to facilitate .
the commission of suicide. Therefore, the act of abetment by the person charged with the said offence must be proved and 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 appellant 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 appellant's side, as would be evident from the following discussion.
21. Adverting to the instant case, it is not in dispute that the deceased was already married to one Suresh of village Tatyana and had thereafter, eloped with the respondent and ::: Downloaded on - 27/06/2024 20:32:23 :::CIS 14 ( 2024:HHC:4072 ) there is no allegation whatsoever that such relationship was opposed by the family members of the deceased. Further, there is nothing on record to suggest a formal marriage having .
taken place, but the same has loosely been termed to be a love marriage by the parents of the deceased.
22. In this background, if the statement of PW-1 Shiv Ram, the father of deceased is seen, he has reiterated the contents as recorded in the FIR and has deposed that his daughter was married with the respondent, who kept her well for 6-7 months and thereafter started maltreating her on account of demand of dowry. He made the respondent to understand and paid him Rs.5000/- but the respondent did not mend his ways and again started maltreating his daughter.
After few days, he received information that his daughter has been killed and he had gone to hospital where the dead body of his daughter was lying and found marks of injuries on her breast, back and chin. According to him, either his daughter had been killed by the respondent or she had committed suicide due to maltreatment by the respondent.
23. On being cross-examined, PW-1 has stated that he had received the information on 23.08.2011 at about 11.00 a.m. and reached at the house of respondent at 2.00 p.m. He admitted that day prior to the death of his daughter, there was ::: Downloaded on - 27/06/2024 20:32:23 :::CIS 15 ( 2024:HHC:4072 ) mela of 'Gugga Mari' in village Kundla during night time, which was attended by his daughter along-with the respondent. He also admitted that respondent had told them that when his .
wife became unconscious, he had taken her to the hospital. He also admitted that the respondent had given them information about the death of their daughter. He further admitted that there was no custom of giving or taking dowry in the area. He showed his inability to recollect the date, month and year when he had paid Rs.5000/- to the respondent. He has admitted that he had not made any complaint against the respondent regarding the maltreatment of his daughter and demand of dowry to the Panchayat or Police. He has further admitted that deceased was married to one Suresh of village Tatiyana and had not sought divorce and eloped with the respondent and married with him.
24. PW-3 is Smt. Sundri Devi, the mother of deceased.
She also corroborated the version of PW-1 on material particulars and testified that her daughter died due to the beatings given by the respondent.
25. On being cross-examined, this witness admitted that one day prior to the death, there was mela of 'Gugga Mari' in village Kundla on the occasion of 'Janamasthmi'. She admitted that respondent, her daughter and other villagers had ::: Downloaded on - 27/06/2024 20:32:23 :::CIS 16 ( 2024:HHC:4072 ) gone to attend the mela. She admitted that Rs.5000/- was paid to the respondent in her presence, but then again stated that she had taken a sum of Rs.5000/- from Surat Singh (PW-
.
4) and paid to the respondent.
26. Now, adverting to the testimony of PW-4 Surat Singh, he though stated on the similar lines of PW-1 and PW-3 above, but surprisingly enough, he had not stated anything regarding the handing over of Rs.5000/- to the respondent as has otherwise been deposed by PW-2 Sundri Devi. He admitted that respondent had not given beatings to the deceased in his presence.
27. The other witnesses of the prosecution are official and their testimonies need not to be adverted to as being unnecessary.
28. From the above evidence of the material witnesses examined by the prosecution, one thing would emerge that deceased was married to one Suresh of village Tatiyana but without obtaining divorce from him, she had eloped with the respondent. There is nothing on record to establish that the respondent had ever demanded dowry muchless Rs.5000/- as claimed by the prosecution. There is no evidence whatsoever worth the name that the respondent had ever during the course of relationship ill-treated the deceased. Rather, as ::: Downloaded on - 27/06/2024 20:32:23 :::CIS 17 ( 2024:HHC:4072 ) regards the relationship of respondent and deceased, there were no differences whatsoever amongst themselves, let alone there being demand of dowry or the deceased being ill-treated, .
which is evident from the fact that on the day prior to the death, deceased had accompanied the respondent in the 'Gugga Mari' mela in village Kundla.
29. There is no direct or incitement to the commission of suicide. There is no proof of harassment whatsoever in the instant case. Even there is no an iota of harassment meted out to the deceased in the instant case, let alone the evidence of continuous harassment. There is no evidence to establish any positive action by the respondent which showed promixate time of occurrence which action can be compelled to force the deceased to commit suicide.
30. As observed above, there is no single instance which has been narrated either in the First Information Report or in the statements of the prosecution witnesses which suggests that the maltreatment was meted out to the deceased, except the narration in the complaint and the statements of father of deceased PW-1 Shiv Ram and PW-3 Sundri Devi, wherein they have stated that Rs.5000/- was paid to the respondent.
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31. Further, no reliance can be placed on such testimonies, in view of contradictions in the statements of not only PW-1 and PW-3 but also in the statement of PW-4.
.
32. 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.
33. 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.
34. 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.
35. Consequently, there is no merit in the appeal and the same is accordingly dismissed. Pending application(s), if any, also stand disposed of.
36. Record be sent down.
( Tarlok Singh Chauhan )
Judge
June 27, 2024 ( Sushil Kukreja )
(naveen) Judge
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