State of Haryana vs Babu Ram and anr.

S.D. Bajaj, J.

Madhu alias Versha daughter of Pt. Nand Kishore of Narela was married to Daya Ram a military employee. On the night intervening between 30/31st August, 1981 while in the house of her inlaws in village Kharkhoda of tehsil and district Sonepat Madhu committed suicide by burning. Fatherinlaw Babu Ram detected it around 4.30/4.45 A.M. on 31st August, 1981 and reported the matter to the police :

"I am a resident of Kharkhoda and do electrical work. I have five sons and one daughter. The eldest son is Daya Ram who has been serving in the Military for the last about 8/9 years. The marriage of Daya Ram was solemnised with Smt. Varsha alias Madhu d/o Master Nand Kishore, resident of Narela. My son Daya Rain had come on one month leave from the Army in June, 1981 whereafter he had brought his wife Madhu from Narela to his house. On 1081981 Daya Ram returned to his duty after expiry of his leave while his wife Madhu remained in our house. Last night at about 10 P M. my wife Prem, all children, Madhu w/o Daya Ram and I after taking meals had gone to sleep on the roof of the house. When I got up at about 430/445 A.M. Madhu wife of my son was not on her cot. I came down. I saw that the door of the house was closed and smoke was coming out. I at once opened the door. There was so much smoke that nothing was visible. I raised alarm of fire ! fire !" whereupon Shri Tale Ram lambardar and Shri Opinder Singh, Jat Sahlawaswala and Raj s/o Ram Kishan residents of Kharkoda arrived. With their help, the fire caught by Niwar bed and the clothes kept in the almirah was put out by throwing water and Madhu was found charred with fire under the bed. Madhu was having stiff breathing at that time. When we were about to remove her to hospital, she expired. I do not know as to why Madhu set herself on fire. We had no quarrel of any kind between us. Leaving Tale Ram lambardar for guarding the dead body, I have come to lodge report."

Daya Ram husband of the deceased` gave to S.H.O., Police Station, Kharknoda, a written application on 10th September, 1981 which reads :

"To

The S.H.O.

P.S. Kharkhoda

It is submitted that I am employed in the military and am a resident of Kharkhoda. My posting is at Sri Ganga Nagar. I was married to Madhu daughter of Nand Kishore, resident of Narela about 21/2 years ago. On 2061981. I had come on one month 25 days leave and brought my wife from Narela with me at Kharkhoda. On 16881. I returned on my job after spending my leave. At the time of my departure, my wife had told me that my mother illtreated her in my absence on the ground that she had not brought dowry from her parents and she insisted on me to take her along with me. I had told my wife Madhu that I would take her with after I was allotted a quarter. I reported at Amritsar on my duty. From Amritsar I was posted at Ganganagar. I came to know that my wife Madhu had expired. I took leave and reached my home at Kharkhoda today, to 10th September, 1981. On reaching home I came to know that my mother Prem Lata had harassed my wife Madhu alias Varsha whom I loved most and compelled her as a result whereof she lost her life. I have come to lodge a report. Action may be taken.

Sd/ Daya Ram Sharma

No. 14222110

S/o Babu Ram Sharma,

KHARKHODA

(563 Sig. Coy

C/o 50 A.P.O.)"

Formal First Information Report No. 93 came to be recorded in Police Station, Kharkhoda, on its basis at 8.45 P.M. on 10th September, 1983.

On being prosecuted under sections 302/201 and 120B of the Indian Penal Code all the three accused i.e. husband and parentsinlaw of the deceased pleaded `not guilty'' thereto and claimed to be tried. Vide its impugned judgment dated 16th September, 1982 learned trial court acquitted all the three accused by giving them the benefit of doubt. Feeling aggrieved therefrom the State of Haryana has filed Criminal Appeal No. 62D DBA of 1983 in this court. Aggrieved complainant party through father of Madhu (deceased) named Nand Kishore Kaushik has filed Criminal Revision No. 752 of 1983.

We have beard Shri J.S. Dhillon, AAG Haryana for the appellant State assisted by Shri Sunil Parti, Advocate, for the complainant party, Shri H.S. Hooda, Sr Advocate, with Shri Anil Rathee, Advocate, for the respondents and have carefully gone through the relevant material on record.

Section 107 of the Indian Penal Code reads :

"107Abetment of a thing A person abets the doing of a thing, who

First. Instigrtes any person to do that thing; or

SecondlyEngages 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 : 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 facilitates the commission thereof, is said to aid the doing of that act."

Abetment to commit suicide to Madhu (deceased) could be through intentional aiding, conspiracy and instigation. There is no accusation against anyone of the three accused of intentional aiding or of conspiracy. Expression `instigate'' in the Concise Oxford Dictionary is defined as `urge on, incite, bring about by persuasion and in Webster''s it has been defined as `urge forward, provoke with synonyms of stimulate, urge, spur, provide tempt, incite, impel, encourage, animate. The word `instigate'' in common parlance would mean to go, to urge forward or to provoke, incite or encourage to do an act. Complaint dated 10th September, 1981 made by Daya Ram accused to SHO, Kharkhoda, gives out "On reaching home I came to know that my mother Prem Lata harassed my wife Madhu alias Varsha whom I loved most and compelled her as a result whereof she lost her life." In terms of the observations made in Hari Singh v. The State of Punjab, 1983(1) Recent Criminal Reports 119 : 1983(1) Chandigarh Law Reporter 123 and Raj Kumar v. State of Punjab, 1983(1) Recent Criminal Report 553 : 1983(1) Chandigarh Law Reporter 660, the course of conduct attributed therein to Smt. Prem Lata accused does not amount to abetment through instigation.

There was thus no occasion for Babu Ram accused to make an extrajudicial confession to Nand Kishore, father of the deceased in Rattan Gond v. The State of Bihar, AIR 1959 SC 18; Lakhanpal v. The State of M.P., AIR 1979 SC 1620 and Sonia Bahera v. State of Orissa, AIR 1983 SC 491 it was observed by their lordships of the Supreme Court :

"Extra judicial confession stated to have been made by the accused to PW 3, Markanda and PW 5 Jatia. This extrajudicial confession is stated to have been made by the appellant after their return from the police station. The police do not appear have examined PW5 after the alleged extrajudicial confession was made.

Held : The extra judicial confession stated to have been made by the appellant in the circumstances of this case, was rightly rejected by the Trial Judge and the High Court was not right in relying upon it as a circumstance against the appellant. It is dangerous to reply upon such extrajudicial confession even if the witness''s credentials are not in question. The question that agitates is what language was used by each accused, in what words confession was made and whether each used the same language ? Evidence of the witness does not reproduce the words used by each accused.

Held : High Court wrongly accepted the evidence on this extrajudicial confession without examining the credentials of PW2 Bistriram; without ascertaining the words used; without referring to the decision of this Court to be presently mentioned wherein it is succinctly stated "that extrajudicial confession to afford a piece of reliable evidence must pass the test of reproduction of exact words, the reason or motive for confession and person selected in whom confidence is reposed.

Usually and as a matter of caution, Courts require some material corroboration to confessional statements such as extrajudicial confession corroboration which connects the accused person with the crime in question."

Denied extra judicial confession is thus of no evidentiary value at all.

Similarly speaking of circumstantial evidence like the one obtaining in the present case their lordships of the Supreme Court observed in Gambhir v. State of Maharastra, AIR 1982 SC 1157, "There is no direct evidence of eyewitness in this case and the case is based only on circumstantial evidence. The law regarding circumstantial evidence is well settled. When a case rests upon the circumstantial evidence, such evidence must satisfy three tests; (1) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established; (2) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused : (3) the circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within a human probability the crime was committed by the accused and none else. The circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused. The circumstantial evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence." The circumstantial evidence of (i) motive, (ii) shrieks of Madhu alleged to have been heard by the neighbors at about 10 P.M. on 3081981, (iii) conduct of the accused, (iv) wrong information sent to the parents of the deceased by the accused through Haqim Rai and Babu, and (v) confession of Babu Ram accused before Nand Kishore PW on 3181991 does not come upto the standard prescribed by the Supreme Court and cannot, therefore, be relied upon to return a finding of guilty against the three accused. Finding of not guilty, recorded by the learned trial court against them is, therefore, affirmed.

In result the appeal and the revision are both rendered wholly without merit and are consequently dismissed.