Himachal Pradesh High Court
State Of Himachal Pradesh vs Ganga Ram & Others on 10 August, 2016
Author: Ajay Mohan Goel
Bench: Sanjay Karol, Ajay Mohan Goel
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Cr. Appeal No. 434 of 2010
.
Reserved on: 25.07.2016
Decided on: 10.08.2016.
State of Himachal Pradesh .... Appellant
of
Versus
Ganga Ram & Others. ... Respondents
rt
........................................................................................................................
Coram
The Hon'ble Mr. Justice Sanjay Karol, Judge.
The Hon'ble Mr. Justice Ajay Mohan Goel, Judge.
Whether approved for reporting?1 No.
For the appellant: Mr. V.S. Chauhan, Additional
Advocate General and Mr. Vikram
Thakur, Deputy Advocate General.
For respondents: Mr. Anup Chitkara, Advocate.
Ajay Mohan Goel, J.
By way of the present appeal, State has challenged the judgment passed by the Court of learned Additional Sessions Judge, Sirmaur District at Nahan, in Sessions Trial No. 18-N/7 of 2007, vide which, learned trial Court has acquitted the accused for commission of offence under Section 306 read with Section 34 I.P.C.
2. In brief, the case of the prosecution was that Ganga Ram was married to deceased Maya Devi about 9 years prior to 1 Whether reporters of the local papers may be allowed to see the judgment?
::: Downloaded on - 15/04/2017 21:00:02 :::HCHP 2the incident and she was residing in the house of the accused at Bhatawali after marriage. Further, as per the prosecution after .
marriage, accused started illtreating the deceased on account of insufficient dowry brought by her. Deceased Maya Devi told the factum of her being illtreated to her mother as well as Usha.
Whenever the mother of the deceased used to go to the house of of accused persons to meet her daughter, she was not allowed to meet her and on account of rt illtreatment meted out to her by the accused, the deceased used to remain mentally depressed. Two days before 04.11.2006, mother of the deceased PW-1 Rani went to meet her daughter but she was abused by the accused persons. Rani had paid an amount of Rs.20,000/- to accused Ganga Ram. On 04.11.2006, deceased committed suicide by hanging herself with a rope at about 1.00 P.M. PW-1 received a telephonic message from a lady that deceased Maya Devi had died and thereafter, she alongwith her relatives and neighbours went to the house of deceased and found her lying on the floor of the room.
3. On receipt of information, ASI Mohar Singh went to the spot and scribed Rukka Ext. PW8/B, on the basis of which, FIR Ext. PW7/A was registered. Dead body was sent for postmortem which was conducted by PW-5 Dr. Kamal Pasha, who opined that deceased had died due to asphyxia combined with venous congestion of cerebal circulation due to hanging.
::: Downloaded on - 15/04/2017 21:00:02 :::HCHP 34. After completion of investigation, challan was filed in the Court and as a prima facie case was found against the accused, .
they were charged for commission of offence under Section 306 read with Section 34 I.P.C.
5. On the basis of material produced on record by the prosecution, learned trial Court concluded that the prosecution was of not able to prove its case against the accused persons beyond reasonable doubt and accordingly, the accused were acquitted by rt giving them benefit of doubt by learned trial Court.
6. Feeling aggrieved by the said judgment learned trial Court, State has filed the present appeal.
7. Mr. V.S. Chauhan, learned Additional Advocate General, argued that the judgment passed by learned trial Court is not sustainable in law as learned trial Court has erred in not appreciating that the prosecution was able to prove the guilt of the accused beyond reasonable doubt. Mr. Chauhan, strenuously argued that the findings of acquittal returned by learned trial Court were perverse and not borne out from the record of the case as evidence led by the prosecution demonstrated beyond reasonable doubt that the deceased committed suicide as a result of abetment for commission of suicide by the accused. Accordingly, he submitted that the judgment of acquittal passed by learned trial Court deserved to be set aside and the accused were liable to be convicted for the charges framed against them.
::: Downloaded on - 15/04/2017 21:00:02 :::HCHP 48. Mr. Anup Chitkara, learned counsel for the respondents, on the other hand, submitted that there was neither any perversity .
nor any infirmity with the judgment passed by learned trial Court and learned trial court had rightly acquitted the accused by giving them benefit of doubt because the prosecution had not been able to prove its case against the accused beyond any reasonable doubt.
of According to Mr. Chitkara, accused were innocent and the material produced on record by the prosecution did not establish that the rt accused were guilty of the charges levelled against them.
Accordingly, he submitted that there was no merit in the present appeal and the same deserved dismissal.
9. We have heard learned counsel for the parties and also gone through the records of the case as well as the judgment passed by the learned trial Court.
10. In the present case, accused have been charged for commission of offence under Section 306 read with Section 34 I.P.C.
It is evident from the testimony of PW-5 and postmortem report of the deceased that she committed suicide by hanging herself. The issue which has to be decided by this Court is whether the accused abetted the commission of the said suicide by the deceased as has been argued by the State or the accused are not guilty of abetting the commission of suicide by the deceased, as has been held by learned trial Court.
::: Downloaded on - 15/04/2017 21:00:02 :::HCHP 511. In order to substantiate its case, prosecution has examined nine witnesses. Defence has also examined one witness.
.
12. PW-1 Smt. Rani is the mother of the deceased. She has stated that her daughter was married to accused Ganga Ram about 8 years back and she gave birth to two children. According to her, after marriage, her daughter started residing with her husband of in the house of Hari Singh and Malki Devi, who had started treating her with cruelty. She further stated that whenever her daughter used rt to come to her house, she used to tell her about the illtreatment being meted out to her by the accused. According to her, accused persons used to remark that parents of the deceased had not given fridge, T.V. and other material items in dowry. She also stated that whenever she used to visit the house of the accused persons to meet her daughter, accused did not allow her to meet her daughter and used to shut the gate of the house. She also stated that because of illtreatment meted out to the deceased by the accused, she was mentally depressed. She also stated that two days prior to the commission of suicide by the deceased, she had gone to the house of her daughter and on that day accused hurled abuses and had hot exchanges with her. She also deposed that prior to the occurrence, she had given Rs.20,000/- to the deceased's husband. In her cross-examination, she stated that she had not moved any application against the accused persons with regard to the alleged treatment meted out to her daughter by the accused before ::: Downloaded on - 15/04/2017 21:00:02 :::HCHP 6 occurrence. She admitted it to be correct that member of Panchayat and Lumberdar of Panchayat resides at Devi Nagar. She also .
admitted it to be correct that there were other houses and shops adjacent to the house of the accused. She also stated that she did not lodge any report when the accused persons abused her and did not allow her to meet the deceased. She also stated that she did of not lodge any report with the police to the effect that the accused were demanding dowry.
rt
13. Smt. Usha entered the witness box as PW-2. This witness is the wife of the deceased's brother. She also deposed that after the marriage of the deceased with Ganga Ram, accused they illtreated the deceased and demanded dowry. In her cross-
examination, this witness admitted that no written application was moved by them with the police etc. to the effect that the demand of dowry was being made by the accused. She also admitted that no complaint etc. had been lodged by her when the accused quarreled with her when she visited the house of Maya Devi.
According to her, the matter was reported to the Panchayat and Panchayat was convened at their house. She further stated that she did not remember the names of members of the Panchayat. She also stated that they did not make any report to the police about demand of dowry by the accused before commission of suicide by the deceased.
::: Downloaded on - 15/04/2017 21:00:02 :::HCHP 714. PW-3 Vinod Kumar stated that he was running a shop at Devi Nagar and on the date of occurrence, he had gone to the .
spot with the parents of Maya Devi.
15. PW-4 Pawan Kumar stated that he was ward member of Gram Panchayat Bhatawali and he knew the accused persons.
He further stated that relations between the accused and the of deceased were cordial and she was never illtretaed by the accused.
This witness did not support the case of the prosecution and he was rt declared as hostile witness.
16. Dr. Kamal Pasha entered the witness box as PW-5 and stated that he had conducted the postmortem of the dead body of deceased Maya Devi. He also stated that the cause of her death was asphyxia combined with venous congestion of cerebral circulation due to hanging. In his cross-examination, he admitted it to be correct that there was no external injury on any part of the body of the deceased.
17. PW-6 Constable Kamlesh Kumar deposed about the factum of Rapat No. 16 being recorded on 04.11.2006.
18. Similarly, PW-7 ASI Shiv Ram deposed about the factum of registration of FIR Ext. PW7/A.
19. PW-8 ASI Mohar Singh stated that after the receipt of the information about the deceased having committed suicide, he rushed to the spot alongwith other police officials and found that a lady, who was tied with ropes had died on the spot. He stated that ::: Downloaded on - 15/04/2017 21:00:02 :::HCHP 8 photographs were taken with official camera and on formal inquiry, it was found that the deceased was subjected to illtreatment by the .
accused persons. This witness also deposed about the body being sent to postmortem to Civil Hospital Paonta Sahib and about the factum of statements of witnesses Jai Chand, Vinod Kumar, Raj Rani, Vimla Rani under Section 161 Cr.P.C.
of
20. PW-9 SHO Khazana Ram stated that he conducted partial investigation in the case and that accused persons were rt arrested by Deputy Superintendent of Police Padam Chand and on the date of occurrence, he had visited the spot.
21. Defence examined Kehar Singh as DW-1, who stated that he was President of Gram Panchayat Kishan-Pura and that he had seen house of the accused persons. He also stated that Panchayat Ghar was situated at a distance of 30 meters from the house of Ganga Ram. He stated that deceased Maya Devi never lodged any report with him about being illtretaed by the accused or about the demand of dowry.
22. Though PW-1 mother of the deceased and PW-2 Bhabi of the deceased, stated that after the marriage of deceased with accused Ganga Ram, she was illtreated by the accused for want of dowry, however, the fact remains that these witnesses have admitted in their cross-examination that no report etc. was ever lodged to this effect to the competent authority or with the police. The contention of PW-2 that a report to this effect was lodged ::: Downloaded on - 15/04/2017 21:00:02 :::HCHP 9 with the Panchayat has not been substantiated by placing any material on record. Besides both PW-1 and PW-2 are interested .
witnesses as they are close relatives of the deceased. The allegation in the present case against the accused is that they have abetted the commission of suicide by the deceased. Save and except bald statements of PW-1 and PW-2, no cogent evidence has been placed of on record by the prosecution to substantiate this allegation. Not only this, PW-4 Pawan Kumar rt ward member of Gram Panchayat Bhatawali has not supported the case of the prosecution. This witness was declared as a hostile witness. Though he was subjected to cross-examination by the prosecution, however, nothing material could be elucidated from his cross-examination to substantiate the case of the prosecution.
23. On the other hand, defence has examined DW-1 Kehar Singh, who has unequivocally stated that the deceased had never lodged any complaint either of her being illtretaed by the accused or to the effect that they were demanding dowry. The testimony of said witness inspires confidence and seems to be trustworthy. On the other hand, testimony of PW-1 and PW-2 does not seem to be cogent because prosecution has not placed any material to substantiate their contention of demand of dowry by the accused or the factum of deceased being illtreated by the accused. The allegation of PW-1 to the effect that she had paid Rs.20,000/- to accused Ganga Ram has also not been substantiated. It is apparent ::: Downloaded on - 15/04/2017 21:00:02 :::HCHP 10 from the testimony of PW-5 Dr. Kamal Pasha that there were no external injury on the body of the deceased.
.
24. It has been held by the Hon'ble Supreme Court in Sangara Bonia Sreen Vs. State of Andhra Pradesh,1997 (5) Supreme Court Cases 348, that the basic ingredients of offence under Section 306 are (a) suicidal death and (b) abetment thereof.
of In our considered view, in order to attract the ingredients of abetment the intention of the accused to aid or instigate or abet the rt deceased to commit suicide is necessary.
25. 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. Section 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.
26. Hereinafter, we will apply these principles to the facts of the present case. A close scrutiny of the statements of the prosecution witnesses will demonstrate that none of them have mentioned any explicit act on the part of the accused which can be termed to be an act of abetment on their behalf which led deceased ::: Downloaded on - 15/04/2017 21:00:02 :::HCHP 11 Maya Devi to commit suicide. On the basis of the statements of the prosecution witnesses who were also interested witnesses, it cannot .
be said that the prosecution was successful in demonstrating and proving that the accused persons had committed any act which could be termed to be an act of abetment towards the commission of suicide by deceased Maya Devi.
of
27. In order to substantiate the charge under Section 306 I.P.C., it has to be established that the death by commission of rt suicide was desired object of the abettors and with that in view they must have instigated, goaded, urged or encouraged the victim in commission of suicide. The instigation may be by provoking or inciting the person to commit suicide and this 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 they had instigated the deceased to commit suicide.
28. 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 accused have been ::: Downloaded on - 15/04/2017 21:00:02 :::HCHP 12 acquitted is either perverse or the acquittal of the accused by the learned Trial Court has amounted to travesty of justice.
.
29. Thus, we conclude by holding that the prosecution has failed to establish beyond reasonable doubt that the accused were guilty of the offences alleged against them. Learned Trial Court after due deliberation and due application of mind has come to the of conclusion that the prosecution could not bring home the guilt against the accused persons beyond reasonable doubt. We find no rt reason to disagree with the said conclusion arrived at by the learned Trial Court. Therefore, we uphold the findings recorded by the learned Trial Court and the appeal is dismissed. Bail bonds, if any, furnished by the accused are discharged.
(Sanjay Karol)
Judge
(Ajay Mohan Goel)
Judge
August 10, 2016.
(BSS)
::: Downloaded on - 15/04/2017 21:00:02 :::HCHP