Himachal Pradesh High Court
State Of Himachal Pradesh vs Murki Lal on 12 May, 2016
Author: Ajay Mohan Goel
Bench: Sanjay Karol, Ajay Mohan Goel
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Cr. Appeal No 577 of 2008.
Reserved On 2.5.2016.
Decided on: 12.5.2016.
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State of Himachal Pradesh.
....Appellant.
Versus
Murki Lal
... Respondent.
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................................................................................................
Coram
The Hon'ble Mr. Justice Sanjay Karol, Judge.
rt
The Hon'ble Mr. Justice Ajay Mohan Goel, Judge.
Whether approved for reporting?1 Yes.
For the appellant. : Mr. R.S. Verma & Mr. V.S. Chauhan, Addl.
Advocate Generals with Mr. Vikram
Thakur & Mr. Puneet Rajta, Dy. Advocate
General
For the respondent . : Mr. M.S. Thakur, Advocate.
Ajay Mohan Goel, J.
The present appeal has been filed by the State against judgment dated 9.5.2008 passed by the Court of learned Additional Sessions Judge, Fast Track Court, Shimla Camp at Rohru in Sessions Trial No. 16-R/7 of 2008, vide which judgment the learned Court has acquitted the accused of the 1 Whether reporters of the local papers may be allowed to see the judgment? Yes.
::: Downloaded on - 15/04/2017 20:20:13 :::HCHP 2offence alleged against him by holding that it will not be safe to hold the accused guilty on the basis of dubious and effete .
evidence led by the prosecution.
2. Briefly, the case of the prosecution was that on 30.6.2006 Dr. P.S. Rana, Medical Officer, Civil Hospital, Rohru, sent written information at about 8:10 a.m., to SHO Police of Station, Rohru to the effect that Smt. Basanti Devi who has consumed poison has been brought to hospital. On the basis of rt the written information Ext.PW6/A. Rapat No. 5 was entered in the Police Station, copy of which is Ext.PW6/B. On the receipt of the said information, ASI Vikram Chauhan and other police officials of Police Station, Rohru immediately went to the hospital.
3. At the hospital, Sh. Jhabu Ram father of Smt. Basanti Devi made a statement under Section 154 Cr.P.C. Ext.
PA, in which it was mentioned that the accused had tied the nuptial knot with his daughter, Basanti Devi, by enticing her about 12-13 years ago and she had given birth to a daughter and a son, who were studying in 6th and 4th classes, respectively, from the loins of the accused. Accused Murki Lal runs a bookshop in Rohru and Smt. Basanti Devi and children ::: Downloaded on - 15/04/2017 20:20:13 :::HCHP 3 were residing at Rohru only. The accused started maltreating Basanti Devi after some time of the marriage, as he doubted .
her fidelity. Whenever accused and his daughter used to visit the complainant, he used to advise them to live properly. For the last about one year the accused had started suspecting the chastity of his wife and used to remark that his wife roams of unnecessarily. Because of the said ill-treatment of Smt. Basanti Devi at the hands of the accused, she left his house in the rt month of November, 2005 and came to her matrimonial home.
Since then, she was residing in the house of the complainant at village Koti and the children were putting up with the accused.
As per complainant, Smt. Basanti Devi had told him that accused used to batter her and asked her to divorce him so that he could remarry. The accused used to visit Smt. Basanti in the house of complainant twice a month and used to force her for divorce. Accused asked Smt. Basanti for dissolution of the marriage in the presence of complainant, failing which he threatened to kill her and her parents. Complainant had further stated that once accused had sent a message through Smt. Binta to his wife to come to Rohru for divorce. On 29.6.2006, accused came alone to his house at village Koti at about 7:00 ::: Downloaded on - 15/04/2017 20:20:13 :::HCHP 4 p.m. In the night, he stayed in village Koti and asked Smt. Basanti to divorce him and also threatened her. On account of .
this, she was under tension and on 30.6.2006 at about 6:30 a.m., complainant's wife Smt. Kanku Devi, daughter-in-law Smt. Bimla and accused told him that Smt. Basanti Devi had consumed poison. Smt. Basanti Devi was immediately brought of to CHC, Rohru where she passed away. Thus, Smt. Basanti Devi committed suicide on account of harassment meted out to rt her by the accused, who instigated her to take such extreme step.
4. On the basis of the said statement, FIR No. 130 of 2006, Ext. PW6/C, was registered in Police Station, Rohru.
Investigation was carried out in the matter and after completion thereof, final report for the trial of accused was presented by the police to the Court. As a prima facie case was found against the accused, he was charged under Section 306 of the Indian Penal Code to which he pleaded not guilty and claimed to be tried.
5. In order to substantiate its case, prosecution has examined 10 witnesses. PW1 Jhabu Ram the father of the deceased and the complainant. PW2 Smt Kanku Devi is the mother of the deceased. PW3 Smt. Radha Devi was Pradhan, ::: Downloaded on - 15/04/2017 20:20:13 :::HCHP 5 Gram Panchayat, Khangteri. PW4 Dr. P.S. Rana had conducted the post-mortem of the dead body of deceased Basanti Devi.
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PW5 Inspector Raj Kumar had prepared the challan after completion of the investigation and forwarded it to the Court.
PW6 HC Prakash Chand had received information about poison having consumed by Smt. Basanti Devi and he had also of registered the FIR. PW7 HC Prakash Chand was posted as an investigating officer in Police Station, Rohru. PW8 Binta Devi rt was an independent witness who turned hostile. PW9 SI Vikram Chauhan had gone to the Civil Hospital, Rohru after receiving the news of Smt. Basanti Devi having consumed poison. PW10 constable Satya Nand was posted in Police Station, Rohru and he had deposited 5 sealed parcels along with sample seals in FSL, Junga.
6. A perusal of the statement made by PW1, Jhabu Ram, will demonstrate that the said witness reiterated in his deposition what was mentioned by him in the statement made by him under Section 154 Cr.P.C. However, in his cross examination, he has mentioned that he had never called any person from the village and Panchayat to inquire as to why the accused wanted divorce. He has further mentioned that he ::: Downloaded on - 15/04/2017 20:20:13 :::HCHP 6 cannot produce any record that Smt. Basanti Devi used to remain ill or tense because of the accused. He has further .
mentioned that no notice was ever given by him or Basanti to the accused with regard to harassment being meted out by the accused. He has also mentioned that the accused and deceased were living in his house Rohru apart from the shop.
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7. PW2, Kanku Devi, mother of the deceased has deposed that Smt. Basanti Devi was married to the accused rt 12-13 years ago and she was having school going children.
She has also stated that Smt. Basanti Devi, her children and the accused started living at their house at Rohru. She has further stated that earlier accused used to keep her nicely but later on he started fighting with her and used to ask her to tell her father to transfer the shop in his name. She has further stated that accused used to say that he will divorce Basanti. She has further stated that accused used to remark that Basanti Devi is of loose character and he wants divorce from her. She has further deposed that Basanti Devi was upset because of the behaviour of accused who came to their house on the evening of 29.6.2006 and asked her to divorce him. In her cross-
examination, she has mentioned that Basanti Devi never ::: Downloaded on - 15/04/2017 20:20:13 :::HCHP 7 complained to her that the accused ill-treated her or does not provide her meals etc. She has also stated in her cross-
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examination that during the night of 29.6.2006 accused slept in a room with her grandson, whereas Basanti Devi slept in a different room. She has also stated that she and accused had brought Basanti Devi to hospital. She has further stated in her of cross-examination that "I do not know as to whether the accused is responsible for the death of my daughter or not.
rt Volunteered, both of them were together at the relevant time."
8. PW3, Radha Devi, Pradhan, Gram Panchayat, Khangteri had mentioned that accused had approached her 2-3 months prior to the death of Basanti. She further deposed that both accused and Basanti had come to her and asked for divorce. As per her, accused and Basanti wanted to divorce each other. She has further stated that thereafter she went with the accused and Basanti to the house of Jhabu Ram and tried to talk to the family members of Basanti in the presence of Basanti and accused but both of them went inside a room. She has further mentioned that Basanti was a good and nice girl. In her cross-examination she stated that Jhabu Ram, his family or ::: Downloaded on - 15/04/2017 20:20:13 :::HCHP 8 Basanti had never complained at any time that accused was harassing Basanti.
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9. The learned trial Court on the basis of the evidence led by the prosecution came to the conclusion that it will be unsafe to hold the accused guilty on the basis of dubious and effete evidence led by the prosecution and that the accused of was entitled for acquittal.
10. The learned trial Court held that evidence suggests rt that till the time Basanti Devi committed suicide, the relations between the accused and the deceased were cordial. As per the learned trial Court, from the evidence available on record, it was apparent that deceased never complained about any ill-
treatment etc. to her mother at the hands of the accused and the question of the accused asking his wife for divorce so that he could remarry and his doubting her chastity or administering beatings to her did not arise at all. Thereafter, it has been held by the learned trial Court that there was no denial to the fact that the shop of the complainant was in occupation of the accused as a tenant who was carrying the business in the said shop and it was also an admitted fact that eviction petition was instituted by the complainant against the accused. The learned ::: Downloaded on - 15/04/2017 20:20:13 :::HCHP 9 trial Court came to the conclusion that it seems that Basanti Devi was taken to his house by the complainant so as to force .
the accused to vacate the shop and a false story of harassment was propounded by the complainant with an ulterior motive to evict the accused from the rented shop after the death of Smt. Basanti Devi. Therefore, on the basis of the reasoning given by of the learned trial Court, the accused has been acquitted.
11. We have heard the learned counsel for the parties rt and have carefully gone through the records of the case as well as the judgment passed by the learned trial Court. Few facts which are relevant for the adjudication of the present appeal are that it is not in dispute that the deceased was married to the accused about 12-13 years prior to her unfortunate unnatural death and that the death has taken place on account of her consuming poison in her parental house. Further though PW1 and PW2 in their statements have tried to make out a case of harassment against the accused but except their bald assertions, that the deceased was being harassed by the accused who was forcing her to divorce, as he doubted her chastity, there is not even an iota of evidence on record placed by the prosecution to substantiate this contention. It is apparent ::: Downloaded on - 15/04/2017 20:20:13 :::HCHP 10 from the record of the case that no complaint etc. was ever lodged either to any authority or to police or to local Panchayat .
either by the deceased or by the parents of the deceased to the effect that she was being harassed by the accused or was being physically assaulted by him. Further the prosecution has also not been able to place on record any material whatsoever of from where it can be gauged or ascertained that the accused committed any such act which could be termed as an act of rt abetment towards the commission of suicide by the deceased.
It has been held by the Hon'ble Supreme Court in Sangara Bonia Sreen Vs. State of Andhra Pradesh, 1997 (4) Supreme that the basic ingredients of offence under Section 306 are (a) suicidal death and (b) abetment thereof. In our considered view, in order to attract the ingredients of abetment the intention of the accused to aid or instigate or abet the deceased to commit suicide is necessary.
12. It is a unique legal phenomenon in the Indian Penal Code that the only act, the attempt of which alone will become an offence, is suicide. The person who attempts to commit suicide is guilty of the offence under Section 309 IPC, whereas the person who committed suicide cannot be reached at all.
::: Downloaded on - 15/04/2017 20:20:13 :::HCHP 11Section 306 renders the person who abets the commission of suicide punishable for which the condition precedent is that, .
suicide should necessarily have been committed. Thus, the crux of the offence under Section 306 itself is abetment. In other words, if there is no abetment there is no question, the offence under Section 306 comes into play.
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13. Now we will apply these principles to the facts of the present case. A close scrutiny of the statement made by Jhabu rt Ram-complainant under Section 154 Cr. P.C. will demonstrate that Basanti Devi was harassed by accused Murki Lal, as he suspected her of fidelity. As per his statement, deceased used to tell him that accused used to physically assault her, as he wanted to solemnize second marriage and for this, he was forcing deceased to divorce him. Jhabu Ram has further stated that accused also demanded divorce from deceased Basanti Devi in their presence and also used to threaten to kill them. As per him, accused had come to his house on 29.6.2006 around 7:00 p.m., and asked deceased Basanti Devi to divorce him and on this count deceased Basanti Devi was under tension.
Besides this, Jhabu Ram has not mentioned any explicit act on account of the accused, which can be termed to be an act of ::: Downloaded on - 15/04/2017 20:20:13 :::HCHP 12 abetment on behalf of the accused, which led deceased Basanti Devi to commit suicide. Further in his statement recorded in the .
Court as PW1, Jhabu Ram has deposed that "the accused used to say that he wants to remarry. Basanti used to remain upset and tense because of the behaviour of the accused. As and when the accused came to our house, he never brought the of children with him. On 29.6.2006, the accused came to my house in the evening. He stayed in our house. He again asked Basanti to divorce him. Basanti was tense on that day. Next day, at rt about 6.00 A.M., Basanti consumed poison" Incidentally, in his cross-examination Jhabu Ram has deposed that "the accused and Basanti were living in my house in Rohru apart from the shop. A part of the building at Rohru is in my possession. We live in that portion of the building off and on. No fight took place between the accused and Basanti in my presence in my house at Rohru. It is correct that on 29.6.2006, the accused slept in a separate room of my house in village Koti with my grandson Munish. On that day, after taking the dinner the accused went to sleep. We also went to sleep. On 30.6.2006, in the morning, the accused was ready to leave for Rohru."
14. PW2 Kanku Devi mother of the deceased in her statement before the Court has mentioned as that "the accused ::: Downloaded on - 15/04/2017 20:20:13 :::HCHP 13 came to our house on 29.6.2006, in the evening. He again asked Basanti to divorce him. She was upset because of the behaviour of the accused. Next day, in the morning, I was there .
in my room. My sons were not there in the house. Sh. Jhabu Ram had gone towards the khud for a walk. The accused called me and remarked that Basanti has consumed something. I went there. The bottle was there in the hands of the accused. He of threw the medicine which was left in the bottle. Then Basanti was brought to Rohru Hospital where she died." In her cross-
rt examination she has stated that "Basanti never complained to me that the accused ill-treats her or does not provide the meals etc. It is incorrect to suggest that Basanti was alright till her death. Me and the accused had brought Basanti to Rohru hospital."
15. On the basis of the above statements of the prosecution witnesses who were also interested witnesses, it cannot be said that the prosecution was successfully able to demonstrate and prove that the accused had committed any act which could be termed to be an act of abetment towards the commission of suicide by deceased Basanti Devi. This is more so, for the reason that it is not the case of the prosecution that ::: Downloaded on - 15/04/2017 20:20:13 :::HCHP 14 the accused for the first time on the night preceding the death of the deceased had asked the deceased to divorce him.
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16. In order to substantiate the charge under Section 306, it has to be established that the death by commission of suicide was desired object of the abettors and with that in view they must have instigated, goaded, urged or encouraged the of victim in commission of suicide. The instigation may be by provoking or inciting the person to commit suicide and this rt instigation may be gathered by positives acts done by the abettors or by omission in the doing of a thing. Thus, the acts or omission committed by the abettors immediately before the commission of suicide are vital. In the present case, we are afraid that the prosecution was not able to substantiate any of the above ingredients. The prosecution could not prove any act of provocation or incitement or omission or commission on the part of the accused, vide which he had instigated the deceased to commit suicide.
17. The prosecution has not been able to establish any intention of the accused to aid or instigate or abet the deceased to commit suicide. Therefore, it cannot be said that the judgment passed by the learned trial Court whereby the ::: Downloaded on - 15/04/2017 20:20:13 :::HCHP 15 accused has been acquitted is either perverse or the acquittal of the accused by the learned trial Court has amounted to travesty .
of justice.
18. Accordingly, we hold that the view which has been taken by the learned trial Court after appreciating the material placed by prosecution on record is one of the reasonable and of plausible views which could have been arrived at in the facts and circumstances of the case. Therefore, we do not find any rt perversity in the judgment passed by the learned trial Court.
The judgment has been passed by appreciating all the material and the same cannot be said to be either cryptic or perverse and the conclusions arrived at are borne out from the material placed on record by the prosecution. Therefore, we do not find any merit in the appeal and the same is dismissed.
(Sanjay Karol) Judge (Ajay Mohan Goel) Judge 12th May, 2016.
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