State of Himachal Pradesh vs Tirath Ram

Sanjay Karol, J.—Assailing the judgment dated 12.7.2012, passed by learned Special Judge, Sirmaur District at Nahan, H.P., in Sessions Trial No. 53-ST/7 of 2011, titled as State of H.P. vs. Tirath Ram, whereby respondent-accused stands acquitted, State has filed the present appeal under the provisions of Section 378 of the Code of Criminal Procedure, 1973.

It is the case of prosecution that Kumari Rajwanti (deceased) was living with the accused at Rajgarh. Though they were not married accused had been sexually exploiting her. On 1st of October, 2010 deceased consumed poison and accused immediately took her for medical treatment to the Indira Gandhi Medical College and Hospital at Shimla. He also informed Chauhan Singh (PW-1), brother of the deceased, who also reached there. All day deceased remained unconscious and eventually expired on 5.10.2010. On the complaint, so made by Chauhan Singh (PW-1), F.I.R. No. 93/2010, dated 6.10.2010 (Ext. PW-13/A) was registered at Police Station Rajgarh, District Sirmour, under the provisions of Sections 306 and 366 of the Indian Penal Code, against the accused. Investigation was conducted by ASI Roshan Lal (PW-16) who searched the house of the accused and recovered personal belongings, clothes etc. of the deceased. Also bottle of poison was sealed and recovered vide memo (Ext. PW-1/G). Post mortem on dead body was conducted by Dr. Harinderjit Singh (PW-17), who on the basis of reports received from the State Forensic Science Laboratory, Junga, opined the deceased to have died on account of poisoning due to organophosphorous insecticide (dicholorovas). With the completion of investigation, which prima facie revealed complicity of the accused in the alleged crime, challan was presented in the Court for trial.

Accused was charged for having committed offences punishable under the provisions of Sections 306 of the Indian Penal Code and Section 3(xii) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (hereinafter referred to as the Act), to which he did not plead guilty and claimed trial.

In order to prove its case, in all, prosecution examined nineteen witnesses and statement of the accused under Section 313 Cr. P.C. was also recorded, in which he took the following defence:

"I am innocent. Rajbanti wanted to marry me on her visit to my residence. I told her that presently Sharad days are going on and after Sharad days are over I will send my relations to your parents house for fixing the marriage and in the meantime she should go back to her place. I had gone in the morning to the Bazar for purchase of newspaper and when I came back Rajbanti told me that she should be saved as she had taken some poison. I immediately called my neighbour and shifted her to the hospital at Rajgarh and from where she was referred to Solan. I took her to IGMC Shimla for treatment as well as I informed her relations. I spent lot of money for her treatment, but she could not survive. I have no art or part in her suicide. It appears that out of fear from her parents, she committed suicide."

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

We have heard Mr. B.S. Parmar, Mr. Ashok Chaudhary, Mr. V.S. Chauhan, learned Addl. Advocate Generals assisted by Mr. Vikram Thakur, learned Dy. Advocate General on behalf of the State as also Mr. Vinay Thakur, learned 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 offences.

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." "

That deceased belonged to a scheduled category notified under the provisions of the Act is not in dispute. In any case such fact stands proved through the testimony of Const. Chattar Singh (PW-4), who has proved certificates (Ext. PW-1/B & 1/C). That accused Tirath Ram was gainfully employed is also not in dispute. Such fact stands proved through the testimony of Const. Suresh Pal (PW-9).

That deceased died on account of consumption of organophosphorous insecticide (dichlorovas) stands established through the testimony of Dr. Harinderjit Singh (PW-17) who issued post mortem report (Ext. PW-17/A). According to the doctor there were neither any signs of gestation/pregnancy nor struggle. Also there was no smear in the swab sent for examination. It has come on record that it was Dr. Chitwan (PW-19) who first attended to the patient at Civil Hospital Rajgarh. Evidently accused brought her for treatment with history of consumption of poison. At that time patient was unconscious and not oriented to time, place and person.

Significantly ASI Roshan Lal (PW-16) who conducted the investigation admits that in the building there were other occupants. It has also come in his investigation that the accused agreed to solemnize his marriage with the deceased but after the ''sharads'', which period was on, as on the date of occurrence of the incident. Also it has come in his investigation that it was the deceased who purchased the poison from the bazaar. Investigation further revealed that to avoid humiliation of going back to her parental house without solemnizing marriage, she took poison.

Through the testimony of Sunil Kumar (PW-10), prosecution has proved that one girl, aged 22 to 24 years bought insecticide from him. This was so done on 1st October, 2010 at about 12.30 p.m.

The question which needs to be considered is as to whether deceased consumed poison on account of any one of the acts, attributable to the accused. Did the accused abet the deceased to take away her life?

At this juncture we deem it appropriate to deal with the statement of law on the point.

Law with regard to abetment to commit suicide, so as to fall within the scope of Section 306 of the Indian Penal Code is now well settled.

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 under section 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 under section 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.

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

"10. The object for which Section 498-A IPC was introduced is amply reflected in the Statement of Objects and Reasons while enacting the Criminal Law (Second Amendment) Act 46 of 1983. As clearly stated therein the increase in the number of dowry deaths is a matter of serious concern. The extent of the evil has been commented upon by the Joint Committee of the Houses to examine the work of the Dowry Prohibition Act, 1961. In some cases, cruelty of the husband and the relatives of the husband which culminate in suicide by or murder of the helpless woman concerned, constitute only a small fraction involving such cruelty. Therefore, it was proposed to amend IPC, the Code of Criminal Procedure, 1973 (in short "CrPC") and the Evidence Act suitably to deal effectively not only with cases of dowry deaths but also cases of cruelty to married women by the husband, in-laws and relatives. The avowed object is to combat the menace of dowry death and cruelty.

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. 19. The object of the provision is prevention of the dowry menace. But as has been rightly contended by the petitioner many instances have come to light where the complaints are not bona fide and have been filed with oblique motive. In such cases acquittal of the accused does not in all cases wipe out the ignominy suffered during and prior to trial. Sometimes adverse media coverage adds to the misery. The question, therefore, is what remedial measures can be taken to prevent abuse of the well-intentioned provision. Merely because the provision is constitutional and intra vires, does not give a licence to unscrupulous persons to wreak personal vendetta or unleash harassment. It may, therefore, become necessary for the legislature to find out ways how the makers of frivolous complaints or allegations can be appropriately dealt with. Till then the courts have to take care of the situation within the existing framework. As noted above the object is to strike at the roots of dowry menace. But by misuse of the provision a new legal terrorism can be unleashed. The provision is intended to be used as a shield and not as an assassin''s weapon. If the cry of "wolf is made too often as a prank, assistance and protection may not be available when the actual "wolf appears. There is no question of the investigating agency and courts casually dealing with the allegations. They cannot follow any straitjacket formula in the matters relating to dowry tortures, deaths and cruelty. It cannot be lost sight of that the ultimate objective of every legal system is to arrive at the truth, punish the guilty and protect the innocent. There is no scope for any preconceived notion or view. It is strenuously argued by the petitioner that the investigating agencies and the courts start with the presumptions that the accused persons are guilty and that the complainant is speaking the truth. This is too wide and generalised a statement. Certain statutory presumptions are drawn which again are rebuttable. It is to be noted that the role of the investigating agencies and the courts is that of a watchdog and not of a bloodhound. It should be their effort to see that an innocent person is not made to suffer on account of unfounded, baseless and malicious allegations. It is equally undisputable that in many cases no direct evidence is available and the courts have to act on circumstantial evidence. While dealing with such cases, the law laid down relating to circumstantial evidence has to be kept in view."

In State of West Bengal Vs. Orilal Jaiswal and another, , the Apex Court has held as under:

"In a criminal trial the degree of proof is stricter than what is required in a civil proceedings. In a criminal trial however intriguing may be facts and circumstances of the case, the charges made against the accused must be proved beyond all reasonable doubts and the requirement of proof cannot lie in the realm of surmises and conjectures. The requirement of proof beyond reasonable doubt does not stand altered even after the introduction of S. 498A, I.P.C and S. 113A of Indian Evidence Act. Although, the court''s conscience must be satisfied that the accused is not held guilty when there are reasonable doubts about the complicity of the accused in respect of the offences alleged, it should be borne in mind that there is no absolute standard for proof in a criminal trial and the question whether the charges made against the accused have been proved beyond all reasonable doubts must depend upon the facts and circumstances of the case and the quality of the evidences adduced in the case and the materials placed on record. The doubt must be of a reasonable man and the standard adopted must be a standard adopted by a reasonable and just man for coming to a conclusion considering the particular subject matter.

The conscience of the court can never be bound by any rule but that is coming itself dictates the consciousness and prudent exercise of the judgment. Reasonable doubt is simply that degree of doubt which would permit a reasonable and just man to come to a conclusion. Reasonableness of the doubt must be commensurate with the nature of the offence to be investigated. Exaggerated devotion to the rule of benefit of doubt must not nurture fanciful doubts or lingering suspicions and thereby destroy social defence. Justice cannot be made sterile on the plea that it is better to let hundred guilty escape than punish an innocent. Letting guilty escape is not doing justice, according to law."

[Emphasis supplied]

In the very same decision the Apex Court further 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.

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,

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

From the testimony of prosecution witnesses, it is evidently clear that deceased herself purchased poison from the market and brought it home. At that time she was alone. Accused had gone out. Also accused never refused to solemnize his marriage with the deceased. He was ready and willing to do so, but only looking for an auspicious time. Sharads, in this part of the country, are considered inauspicious for performance of such type of ceremonies. Also there was no urgency to solemnize the marriage. Accused did not beat her or caused any physical or mental cruelty.

Neighbour, Kumari Anju (PW-7), was informed of the incident by the accused. This was on 2nd October, 2010 at about 9.30 a.m. She is certain of not knowing the reason for which deceased consumed poison. She is an immediate neighbour. Deceased never disclosed anything to her. She never heard any altercation between the accused and the deceased. Deceased only told her that accused was asking her to go back to the village when only talks of marriage would take place. But then there was no denial of marriage.

Chauhan Singh (PW-1), brother of the deceased, states that "either my sister was brought to Rajgarh or she was motivated to come to Rajgarh and what relations were prevailing among them I do not know. I and my family suspect that my deceased sister stayed in the house of accused at Rajgarh and something happened during this stay period and she consumed poison or was forced to consume poison". He categorically does not state that deceased consumed poison on account of any overt act(s), alleged to have been committed by or attributable to the accused. According to him, family only suspected relations between the accused and the deceased and that deceased consumed poison either out of force or during the period of her stay with the accused. With certainty he could not state whether accused was staying with the deceased or not. He admits that accused brought the deceased for treatment to I.G.M.C. at Shimla and incurred all expenses for treatment. Accused also remained in attendance during the period of her treatment. Witness does not narrate any specific incident, which would have prompted or goaded the deceased to take away her life. Testimony of Ramesh Chand (PW-2) also does not advance the case of prosecution any further than what is so deposed by PW-1.

Significantly it is not a case of murder but abetment to commit suicide. In the instant case except for suspicion, there is nothing to even remotely suggest complicity of the accused in the alleged crime. The accused wanted to get married to the deceased and was only looking for an opportune and auspicious time. He remained in attendance in the hospital all throughout her treatment.

Having perused the testimony of prosecution witnesses on record, it cannot be said that prosecution has been able to prove its case, beyond reasonable doubt, to the effect that accused abetted deceased Rajwanti, belonging to Scheduled Caste, to commit suicide and kept and exploited her sexually by dominating her will, by leading clear, cogent, convincing and reliable material on record. It cannot be said that the findings returned by court below are not borne out from the record, are perverse, illegal, erroneous or arisen out of incomplete appreciation of the prosecution evidence.

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., , since it cannot be said that the trial Court has not correctly appreciated the evidence on record or that acquittal of the accused has resulted into travesty of justice, no interference is warranted in the instant case.

For all the aforesaid reasons, present appeal, devoid of merit, is dismissed, so also pending applications, if any. Bail bonds, if any, furnished by the accused are discharged. Records of the Court below be immediately sent back.