Jaswinder Kumar and Others vs State of Himachal Pradesh

Dharam Chand Chaudhary, J.—Challenge herein is to the judgment dated 31.12.2007, passed by learned Additional Sessions Judge (Fast Track Court), Solan, District Solan, in Case No. 11 FTN/7 of 2007, whereby the appellants-convicts (hereinafter referred to as ''the accused''), have been convicted under Section 306 read with Section 34 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for a period of four years each and to pay a fine of Rs. 5,000/- each.

In an unfortunate and shocking incident, a young lady, namely Surindra Devi, aged 20 years, had set herself on fire by pouring kerosene oil on her person on 20.3.2006, around 4.30 p.m., in the matrimonial home, i.e. at village Koli Majra, Tehsil Nalagarh, District Solan. The intimation in this behalf was given to the police of Police Chowki, Baddi under Police Station, Barotiwala by younger son of accused Kala Ram, at 6.30 p.m., which was entered in Rapat Roznamcha vide Rapat No. 17 Ext.PW-6/A. The victim was also shifted to PGI, Chandigarh. PW-9 ASI Tapender Thakur immediately on receipt of the information rushed to PGI, Chandigarh. The victim was not found in a position to make statement. She remained under treatment till 21.3.2006 and died on that day in the evening at 9.30 p.m. On her death, the Investigating Officer prepared the inquest report Ext.PW-4/A.

From the statements of the persons associated by the Investigating Officer in PGI, Chandigarh, it transpired that the incident occurred on account of the deceased being mentally disturbed. Reference in this behalf can also be made to Rapat Roznamcha Ext.PW-5/B entered at the instance of PW-10 SHO Bhisham Thakur of Police Station, Barotiwala. He was informed about the incident by PW-9 Tapender Thakur. This document reveals that on enquiry conducted by PW-10 Bhisham Thakur, the deceased was found to have married with accused Jaswinder Kumar only a month ago. She was suffering from fits and even was under treatment also. On the day, when she set herself on fire, her husband was away to Nalagarh, whereas, father-in-law and mother-in-law were in the fields. The deceased was alone alongwith other children in the house. She poured kerosene oil on her person and set herself on fire. The children raised alarm and on this, her in-laws rushed to the house. The deceased was immediately removed to PGI, Chandigarh. Therefore, the cause to the incident, as per the preliminary enquires made by the police on the spot, was the deceased suffering from fits and used to remain mentally disturbed on this count. Anyhow, the Investigating Officer made an application, which is Ext.PW-4/B to the Head of Forensic Department, PGI, Chandigarh, with a request to conduct postmortem of the dead body of deceased Surindra. The postmortem report is Ext.PW-9/C, which reveals that the cause of death was shock due to extreme burns, i.e., 98% ante-mortem. The dead body was handed over to her in-laws, the accused persons for cremation.

It is after 5-6 days of the incident the matter was reported to police by PW-1 Atma Ram, the father of the deceased vide application Ext.PW-1/A. It is only on this application FIR, Ext.PW-10/B, was registered against all the accused. It was reported by PW-1 that his daughter has died in mysterious circumstances. In case she has set herself on fire, according to him, it is the accused persons who forced her to do so. He also apprehended that it is the accused, who might have set her on fire. It was also reported that all the accused had tortured her and it is for this reason she died on 21.3.2006. In order to explain the delay of 5-6 days, it was reported that he was mentally disturbed on account of the untimely death of his daughter, hence, could not report the matter earlier.

During the investigation, the Investigating Officer also prepared map of the spot Ext.PW-10/C. Dr. Gian Thakur, Scientific Officer, State Forensic Science Laboratory, Junga, visited the spot and submitted the report Ext.PX. In his opinion, the possibility of suicide could have not been ruled out. The match-sticks and kerosene oil bottle taken into possession from the spot were sent to the Forensic Science Laboratory, Junga for analysis and as per report Ext.PW-10/A, the contents of kerosene oil were found present therein. On the completion of the investigation, police filed challan against the accused in the trial Court. They all were found to have committed the offence punishable under Section 306 read with Section 34 of the Indian Penal Code and charges against each of them were framed accordingly. They, however, pleaded not guilty and claimed trial.

The prosecution in order to sustain charges against the accused examined ten witnesses in all. At the conclusion of the trial and hearing the prosecution as well as the accused, learned trial Court has arrived at a conclusion that a case under Section 306 read with Section 34 of the Indian Penal Code is made out against the accused and they all were, therefore, convicted and sentenced as pointed out at the outset.

The findings of conviction and sentence recorded against them have been assailed before this Court on several grounds, however, mainly that there is no iota of evidence which connects the accused with the commission of the offence. It has also been pointed out that the Court below has not appreciated the evidence available on record in its right perspective and to the contrary erroneously held the accused guilty under Section 306 read with Section 34 of the Indian Penal Code. Therefore, the impugned judgment has been sought to be quashed and set aside.

Shri Ramakant Sharma, learned Counsel representing the accused, has vehemently argued that there is no evidence what to speak of legal and acceptable qua the allegations of alleged harassment and maltreatment of the deceased in the matrimonial home. Learned Counsel submits that otherwise also within a short span of one month after marriage in the matrimonial home, without there being any cogent and reliable evidence it cannot be believed that the deceased committed suicide on account of being tortured or mentally harassed by the accused. The findings to the contrary being perverse and contrary to the record have thus been sought to be quashed and set aside.

On the other hand, Shri Pushpinder Jaswal, learned Deputy Advocate General, while supporting the judgment under challenge, has submitted that sufficient evidence, cogent and reliable, has come on record by way of testimony of PW-1 Atma Ram, father of the deceased, her brother PW-2 Surjan Singh and sister-in-law PW-3 Smt. Kamlesh. Therefore, according to learned Deputy Advocate General, learned trial Court has not committed any illegality or irregularity while convicting and sentencing all the accused for the commission of an offence under Section 306 read with Section 34 of the Indian Penal Code.

On analyzing the rival submissions and also the record, I find the present not a case where the scrutiny of the record discloses the commission of offence punishable under Section 306 of the Indian Penal Code.

In order to bring the guilt home to an accused for the commission of such an offence, the prosecution is required to prove and plead that some person has committed suicide and it has been committed in consequence of abetment thereof by the accused. In other words, if any person instigates any other person to commit suicide and as a result of such instigation, the other person commits suicide, the person causing instigation is liable to be punished under Section 306 for abetting the commission of suicide. The bare perusal of Section 306 of the Code itself demonstrates that the prosecution in order to plead and prove the commission of an offence of this nature is not only required to prove that the deceased had committed suicide, but also that it is the accused who aided and abetted the commission of suicide by the deceased by the acts/omission or conduct on his/their part. Therefore, the question that it is the accused alone who on account of acts of omission/commission attributed to them or objectionable conduct instigated the deceased within the meaning of Section 107 of the Indian Penal Code has to be decided after appreciating the oral as well as documentary evidence produced by the prosecution during the course of trial. However, before that it is deemed appropriate to take note of the facts which are not in controversy.

The deceased admittedly was 20 years of age at the time of her death in this unfortunate incident. She was married to accused Jaswinder Kumar only on 18.2.2006. She died on 21.3.2006 on account of burn injuries to an extent of 98% on her person in PGI, Chandigarh.

Now coming to the facts which are in controversy, as per prosecution case, the accused started the deceased treating with cruelty immediately after the marriage. There is, however, not even a whisper in the statements of material prosecution witnesses, i.e., the father of deceased Shri Atma Ram (PW-1), brother Surjan Singh (PW-2) and sister-in-law Smt. Kamlesh (PW-3) as to why the deceased was being ill-treated and the manner in which she was being treated with cruelty. Therefore, the mere statement made in the application (Ext.PW1-/A) after 5-6 days of the incident that the accused used to treat the deceased with cruelty cannot be believed as gospel truth to arrive at a conclusion that she was being beaten up, tortured or ill-treated in the matrimonial home and it is for this reason she committed suicide. On the other hand, PW-1 Atma Ram has expressed his ignorance about the death of his daughter deceased Surindra. It can rather be gathered from his statement that due to the death of his wife (mother of the deceased), the deceased being of tender age at that time had gone in depression and even was suffering from fits also. It has also come in his statement that on account of being called by the in-laws of the deceased his son PW-2 Surjan Singh went to their house and got the deceased treated.

PW-2 Surjan Singh has also stated that on being called by in-laws of his deceased sister when he visited their house, he had taken the deceased sister to a worshiper of Guga Pir in village Rathpur for treatment. No doubt, as per his version in the examination-in-chief, he brought her thereafter to his house, but mother-in-law and husband of the deceased came and she was taken to the matrimonial home on the same day. However, if his cross-examination is seen, it is stated that they went to the matrimonial home straightway from village Rathpur. He also stated that thereafter one Bhagat was also called. However, no treatment was given by the said Bhagat. The treatment to the deceased was given by the doctor. He also admits that his sister was suffering from fits.

If coming to the testimony of PW-3 Smt. Kamlesh, the sister-in-law of deceased, no doubt she tells us that the deceased was brought by her husband (PW-2) to their house for treatment. The deceased even was also keen to live with them and was not ready and willing to go to the house of her in-laws. It is, however, her mother-in-law and husband came there and she was taken back to the matrimonial home by them. This witness has also deposed that the deceased told her about her husband was living with his aunt accused Geeto and also that he was not prepared to have meals from the deceased on the pretext that she may mix poison therein. Therefore, according to this witness, the deceased was being tortured and ill-treated in the matrimonial home and it is for this reason she committed suicide. However, as per her version also that too in examination-in-chief, she expressed her ignorance about the cause of death of deceased.

This alone is the evidence which can be said to be material in the present case. In my considered opinion, the same is neither cogent nor reliable or sufficient to arrive at a conclusion that it is the accused persons who alone abetted the commission of suicide by treating her with cruelty for the reason that no instance of cruelty is forth coming. Mere statements that the deceased was being treated with cruelty and it is due to this reason she has committed the suicide, is neither plausible nor sufficient to record the findings of conviction against the accused. There is no iota of evidence to suggest as to what was the cause of the maltreatment meted out to the deceased. Otherwise also, no one can take such a drastic step to put his/her life to an end, that too, within one month''s stay in the matrimonial home in the company of the accused. The urge to live is the natural human tendency, therefore, in a case of suicidal death the degree of cruelty should be so high that the deceased in the two choices, i.e., lead to live and pangs of death compelled to join the former, i.e., pangs of death. There is no evidence suggesting that the degree of cruelty meted out to the deceased was so that she was compelled to choose the pangs of death instead to lead normal life.

On the other hand, the conduct of the accused reveals that the matter was reported to the police immediately after the incident by the brother-in-law of the deceased. The deceased was immediately removed to PGI, Chandigarh, one of the best institutions in northern India for medical care. The accused, therefore, made every possible effort to save the life of the deceased. It is also not made out from the record that on account of certain acts of omission and commission attributed to the accused the deceased was apprehending danger to her life in their company and as such she decided to put an end of her life.

On the other hand, the present is not a case where it can be said that no probable explanation qua the death of the deceased is on record for the reason that the prosecution evidence itself reveals that she was mentally depressed and was also suffering from fits even well before her marriage, may be on account of death of her mother when she was of tender age. Therefore, examining the evidence available in this case from any angle neither any case under Section 306 of the Indian Penal Code is made out against the accused persons nor the presumption under Section 113-A of the Indian Evidence Act can be raised in favour of the prosecution for the reason that it is not at all pointed out that the deceased was ever treated with cruelty by the accused what to speak of maltreatment preceding her death. The present is a case where the cause of such alleged cruel behaviour of the accused towards the deceased is not established on record. The deceased no doubt has committed suicide but not on account of being tortured or instigated to do so by the accused. She appears to have put to an end of her life under the depression or on account of having suffered fit.

In view of the above, the present is a case where the prosecution has failed to prove its case against the accused persons beyond all doubts. They are, therefore, entitled to the benefit of doubt and resultantly acquittal. The findings of conviction recorded by the trial Court are, therefore, not legally and factually sustainable. The impugned judgment, therefore, deserves to be quashed and set aside.

For all the reasons recorded hereinabove, this appeal succeeds and is hereby allowed. Consequently, the impugned judgment is set aside. The accused are acquitted of the charges framed against each of them. The personal bonds furnished by the accused persons stand cancelled and surety bonds discharged. The amount of fine, if deposited, shall be refunded to them, under proper identification and receipt.