State of Himachal Pradesh vs Tej Pal

Sanjay Karol, J.—The moot question, which arises for consideration in the present appeal, is as to whether the Court below correctly and completely applied the settled principles of law, after fully appreciating the testimonies of relevant prosecution witnesses, namely Ram Ji Dass (PW-1), Jyoti (PW-2), Leela Devi (PW-3), Gurpreet Singh (PW-4) and Jaspal (PW-5), while acquitting the accused of the charge of abetting Rajni Devi (deceased) to commit suicide.

State has appealed against the judgment dated 27.12.2007 of the learned Additional Sessions Judge, Solan, District Solan, Himachal Pradesh, passed in Sessions Trial No. 10-S/7 of 2007, titled as State of Himachal Pradesh v. Tej Pal, challenging the acquittal of respondent Tej Pal (hereinafter referred to as the accused), who stands charged for having committed an offence punishable under the provisions of Section 306 of the Indian Penal Code.

On 24.11.2006, SI D.R. Ramnaik (PW-13), SHO, Police Station, Kasauli, received information from the ESI Hospital, Parwanoo about death of a lady, namely Rajni. After making entry in the Daily Diary, he proceeded to the Hospital, where Ram Ji Dass (PW-1), father of the deceased, got recorded his statement (Ex. PW-1/B), on the basis of which FIR No. 106, dated 24.11.2007 (Ex. PW-12/A), under the provisions of Section 306, 304-B of the Indian Penal Code, was registered at Police Station Kasauli. Ravinder Sharma (PW-16) conducted the investigation. He got postmortem of the dead body conducted through Dr. Anuj Kumar Gupta (PW-14), who first attended to the deceased, when she was brought to the hospital. As per postmortem report (Ex. PW-14/B), deceased died due to consumption of aluminium phosphide poisoning, leading to cardio respiratory arrest. Investigation revealed that accused was married to the deceased on 5.5.2005. Since then he subjected her to cruelty; made dowry demands, as a result of which she committed suicide by consuming aluminium phosphide. With the completion of investigation, which revealed complicity of the accused in the alleged crime, challan was presented in the Court for trial.

Accused was charged for having committed an offence punishable under the provisions of Section 306 of the Indian Penal Code to which he did not plead guilty and claimed trial.

In order to establish its case, prosecution examined as many as 16 witnesses and statement of the accused u/s 313 of the Code of Criminal Procedure was also recorded, in which he took plea of innocence.

Based on the testimonies of witnesses and the material on record, trial Court acquitted the accused of the charged offence. Hence, the present appeal by the State.

We have heard Mr. Ashok Chaudhary, learned Additional Advocate General, on behalf of the State as also Mr. J.L. Bhardwaj, Advocate, on behalf of the accused. We have also minutely examined the testimonies of the witnesses and other documentary evidence so placed on record by the prosecution. Having done so, we are of the considered view that no case for interference is made out at all. We find that the judgment rendered by the trial Court is based on complete, correct and proper appreciation of evidence (documentary and ocular) so placed on record. There is neither any illegality/infirmity nor any perversity with the same, resulting into miscarriage of justice.

It is a settled principle of law that acquittal leads to presumption of innocence in favour of an accused. To dislodge the same, onus heavily lies upon the prosecution. Having considered the material on record, we are of the considered view that prosecution has failed to establish essential ingredients so required to constitute the charged offence.

In Prandas Vs. The State, , Constitution Bench of the apex Court, has held as under:

"(6) It must be observed at the very outset that we cannot support the view which has been expressed in several cases that the High Court has no power under S. 417, Criminal P.c., to reverse a judgment of acquittal, unless the judgment is perverse or the subordinate Court has in some way or other misdirected itself so as to produce a miscarriage of justice. In our opinion, the true position in regard to the jurisdiction of the High Court under S. 417, Criminal P.c. in an appeal from an order of acquittal has been stated in- AIR 1934 227 (Privy Council) , in these words:

"Sections 417, 418 and 423 of the Code give to the High Court full power to review at large the evidence upon which the order of acquittal was founded, and to reach the conclusion that upon that evidence the order of acquittal should be reversed. No limitation should be placed upon that power, unless it be found expressly stated in the Code. But in exercising the power conferred by the Code and before reaching its conclusions upon fact, the High Court should and will always give proper weight and consideration to such matters as (1) the views of the trial Judge as to the credibility of the witnesses, (2) the presumption of innocence in favour of the accused, a presumption certainly not weakened by the fact that he has been acquitted at his trial, (3) the right of the accused to the benefit of any doubt, and (4) the slowness of an appellate Court in disturbing a finding of fact arrived at by a Judge who had the advantage of seeing the witnesses. To state this, however, is only to say that the High Court in its conduct of the appeal should and will act in accordance with rules and principles well known and recognized in the administration of justice." "

Prosecution has not examined any independent witness. Deceased died within seven years of her marriage. Prosecution, through the testimonies of Ramji Dass (PW-1), Jyoti (PW-2), Leela Devi (PW-3), Gurpreet Singh (PW-4) and Jaspal (PW-5), wants us to believe that on account of various overt and covert acts so committed by the accused, deceased committed suicide. However, when we examine testimonies of these witnesses, we find the prosecution case not to have been proven, beyond reasonable doubt.

In Ramesh Kumar Vs. State of Chhattisgarh, , the Apex Court has also held that "Sections 498-A and 306 IPC are independent and constitute different offences. Though, depending on the facts and circumstances of an individual case, subjecting a woman to cruelty may amount to an offence u/s 498-A and may also, if a course of conduct, amounting to cruelty is established leaving no other option for the woman except to commit suicide, amount to abetment to commit suicide. However, merely because an accused has been held liable to be punished u/s 498-A IPC it does not follow that on the same evidence he must also and necessarily be held guilty of having abetted the commission of suicide by the woman concerned." It further held that

"10. Section 306 IPC provides that if any person commits suicide, whoever abets the commission of such suicide, shall be liable to be punished. The ingredients of abetment are set out in section 107 of IPC which reads as under:

Abetment of a thing.-A person abets the doing of a thing, who-First-Instigate 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."

There is no direct evidence adduced of the accused-appellant having abetted Seema into committing suicide. The prosecution has relied on section 113A of Evidence Act which reads as under:-

113A. Presumption as to abetment of suicide by a married woman-When the question is whether the commission of suicide by a woman had been abetted by her husband or any relative of her husband and it is shown that she had committed suicide within a period of seven years from the date of her marriage and that her husband or such relative of her husband had subjected her to cruelty, the court may presume, having regard to all the other circumstances of the case, that such suicide had been abetted by her husband or by such relative of her husband.

Explanation.-For the purpose of this section, "cruelty" shall have the same meaning as in section 498A of the Indian Penal Code.

This provision was introduced by Criminal Law (Second) Amendment Act, 1983 with effect from 26.12.1983 to meet a social demand to resolve difficulty of proof where helpless married women were eliminated by being forced to commit suicide by the husband or in-laws and incriminating evidence was usually available within the four-corners of the matrimonial home and hence was not available to any one outside the occupants of the house. However still it cannot be lost sight of that the presumption is intended to operate against the accused in the field of criminal law. Before the presumption may be raised, the foundation thereof must exist. A bare reading of section 113A shows that to attract applicability of section 113A, it must be shown that (i) the woman has committed suicide, (ii) such suicide has been committed within a period of seven years from the date of her marriage, (iii) the husband or his relatives, who are charged had subjected her to cruelty. On existence and availability of the above said circumstances, the court may presume that such suicide had been abetted by her husband or by such relatives of her husband. The Parliament has chosen to sound a note of caution. Firstly, the presumption is not mandatory; it is only permissive as the employment of expression "may presume" suggests. Secondly, the existence and availability of the above said three circumstances shall not, like a formula, enable the presumption being drawn; before the presumption may be drawn the Court shall have to have regard to ''all the other circumstances of the case''. A consideration of all the other circumstances of the case may strengthen the presumption or may dictate the conscience of the court to abstain from drawing the presumption. The expression-''The other circumstances of the case'' used in section 113A suggests the need to reach a cause and effect relationship between the cruelty and the suicide for the purpose of raising a presumption. Last but not the least the presumption is not an irrebuttable one. In spite of a presumption having been raised the evidence adduced in defence or the facts and circumstances otherwise available on record may destroy the presumption. The phrase ''may presume'' used in section 113A is defined in section 4 of the Evidence Act, which says-''whenever it is provided by this Act that court may presume a fact, it may either regard such fact as proved, unless and until it is disproved or may call for proof of it.'' "

In Sushil Kumar Sharma Vs. Union of India (UOI) and Others, , the Apex Court has held that:

"11. One other provision which is relevant to be noted is Section 306 IPC. The basic difference between the two sections i.e. Section 306 and Section 498-A is that of intention. Under the latter, cruelty committed by the husband or his relations drag the woman concerned to commit suicide, while under the former provision suicide is abetted and intended."

In State of West Bengal Vs. Orilal Jaiswal and another, , the apex Court cautioned that the court should be extremely careful in assessing the facts and circumstances of each case and the evidence adduced in the trial for the purpose of finding whether the cruelty meted out to the victim had in fact induced her to end the life by committing suicide. If it transpires to the court that a victim committing suicide was hypersensitive to ordinary petulance, discord and differences in domestic life quite common to the society to which the victim belonged and such petulance, discord and differences were not expected to induce a similarly circumstanced individual in a given society to commit suicide, the conscience of the court should not be satisfied for basing a finding that the accused charged of abetting the offence of suicide should be found guilty.

In Kundula Bala Subrahmanyam and Another Vs. State of Andhra Pradesh, , the Apex Court has held that "The role of courts, under the circumstances assumes greater importance and it is expected that the courts would deal with such cases in a more realistic manner and not allow the criminals to escape on account of procedural technicalities or insignificant lacuna in the evidence as otherwise the criminals would receive encouragement and the victims of crime would be totally discouraged by the crime going unpunished. The courts are expected to be sensitive in cases involving crime against women."

In Balram Prasad Agrawal Vs. State of Bihar and others, , the Apex Court held cruelty to mean torture to be so unbearable in the common course of human conduct that a young lady having commitments to life could take a drastic steps to end her life leaving behind her infant children in the lurch and at the mercy of the accused husband who was found to be in contemplation of remarrying.

Instigation is to goad, urge forward, provoke, incite or encourage to do "an act". To satisfy the requirement of instigation though it is not necessary that actual words must be used to that effect or what constitutes instigation must necessarily and specifically be suggestive of the consequence. Yet a reasonable certainty to incite the consequence must be capable of being spelt out. The accused must by his acts or omission or by a continued course of conduct create such circumstances that the deceased is left with no other option except to commit suicide in which case an instigation may have been inferred. A word uttered in the fit of anger or emotion without intending the consequences to actually follow cannot be said to be instigation. [ Ramesh Kumar Vs. State of Chhattisgarh, ]

In order to convict a person under the provisions of Section 306 of the Indian Penal Code, there has to be a clear mens rea of committing the offence. It also requires active or direct act, which would lead the deceased to commit suicide, seeking no option, which act must be intended to push the deceased into such a position that she commits suicide. [See: M. Mohan Vs. The State represented by The Deputy Superintendent of Police, ].

Prosecution evidence has to be appreciated in the backdrop of the aforesaid legal position.

Prosecution case is not that of murder, but that of suicide. That Rajni died on account of consumption of aluminium phosphide stands proved on record through the testimony of Dr. Anuj Kumar Gupta (PW-14), who has proved postmortem report (Ex. PW-14/B). According to the doctor, when he first examined the deceased, she was not responding; her pulse was weak and as such he referred her for treatment to the MCH Chandigarh vide MLC (Ex. PW-14/A). Thus, her statement could not be recorded. Significantly, it was the accused who brought the deceased to the hospital.

Ram Ji Dass (PW-1), father of the deceased, states that accused used to harass the deceased. He would get angry if she overstayed at her parental house. Deceased complained of harassment from the hands of her in-laws. However, he prevailed upon her to maintain cordial relations. Also, accused demanded Rs. 50,000/- for purchasing a motorcycle. We find the witness to have further clarified, to the advantage of the accused, that a sum of Rs. 50,000/-paid by him, was neither on the asking of his daughter nor her in-laws. With regard to demand of motorcycle, he does not remember the date, time or place. Significantly, this fact was not got recorded by him in his initial version made to the police. It appears to be an improvement. Be that as it may, from his testimony, it stands clarified that accused and his father, who is a Government servant, are affluent and well placed in life. They have landed property. This witness also admits that prior to the alleged demand of motorcycle, no other demand was made either by the accused or his family members. With regard to alleged acts of harassment, which in any case are not proved, witness admits that her daughter never made any grievance during his visits to her house. From his statement we cannot make out that the act and conduct of the accused was such which can be termed as abetment and cruelty to fall within the definition of charged offence.

When we examine the statement of Kumari Jyoti (PW-2), sister of the deceased, we find she only states that accused and his parents used to snub the deceased. Except for such bald assertion, in her statement, on the act of cruelty, she has deposed nothing. Insofar as dowry demand of motorcycle is concerned, she admits not have got such fact recorded in her previous statement so recorded by the police, with which she was confronted.

Smt. Leela Devi (PW-3), mother of the deceased, states that a sum of Rs. 50,000/- was paid to the accused, but then she clarifies that this was so done of "our own sweet will". She wants the Court to believe that subsequent to payment of the aforesaid amount, demand of motorcycle was raised by the accused, but we do not find the version of hers to be inspiring in confidence, for the reason, as even according to her such demand was made one month prior to death of the deceased, whereas according to Ram Ji Dass, such demand was made five months after the wedding. It be only observed that marriage was solemnized in the month of May, 2005 and death took place in November, 2006. We may also note her admission that none from the village of the accused informed them about any harassment caused by family of the accused.

Gurpreet Singh (PW-4), cousin of the deceased, states that in the month of November, 2006, deceased telephonically informed him that she had been harassed and maltreated by her in-laws, which incident he narrated to her family members. Statement is vague and unspecific. Version of this witness does not inspire confidence for the simple reason that such fact does not find mention in his previous statement, with which he was confronted. Not only that, none of other witnesses has supported such version. To us, this witness appears to have been introduced by the prosecution. Also, it is not the case of this witness that he was close to the deceased. He was residing separately. If at all deceased had to make a grievance about any alleged acts of maltreatment/harassment, she would have disclosed to her parents instead of her cousin, with whom she had no special relationship.

On the other hand, we find that prosecution witness Jaspal (PW-5), brother-in-law of the deceased, has deposed that deceased never complained about any overt act on the part of her in-laws. He learnt about the alleged demand of motorcycle, from the parents of the deceased, only after her death.

Hence, keeping in view the material placed on record and the aforesaid statement of law, it cannot be said that prosecution has been able to establish its case, beyond reasonable doubt, by leading clear, cogent, convincing and reliable piece of evidence so as to prove that accused abetted commission of crime of suicide of his wife Rajni (deceased) by subjecting her to cruelty.

For all the aforesaid reasons, we find no reason to interfere with the well reasoned judgment passed by the trial Court. The Court has fully appreciated the evidence so placed on record by the parties.

The accused has had the advantage of having been acquitted by the Court below. Keeping in view the ratio of law laid down by the Apex Court in Md. Ankoos and Others Vs. The Public Prosecutor, High Court of A.P., , it cannot be said that the Court below has not correctly appreciated the evidence on record or that acquittal of the accused has resulted into travesty of justice. No ground for interference is called for. The present appeal is dismissed. Bail bonds, if any, furnished by the accused are discharged.

Appeal stands disposed of, so also pending application(s), if any.