IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA Cr. Appeal No. 367/2010 Reserved on : 2.11.2017 . Decided on : 10.11.2017 [ENTITY] Appellant Versus [ENTITY] Respondent Coram: The Hon'ble Mr. Justice [ENTITY], Judge. The Hon'ble Mr. Justice [ENTITY], Judge. Whether approved for reporting?1 No. For the appellant: Mr. [ENTITY], Addl. A.G. with Mr. [ENTITY], Asstt. A.G. For the respondent: Mr. [ENTITY], Advocate as legal-aid counsel. Per Justice [ENTITY], Judge:
The State has filed the instant appeal against the judgment dated 19.3.2010 passed by the learned Additional Sessions Judge, Fast Track Court, Kangra at Dharamshala, H.P. in [CASE NUMBER]/VII/07, whereby the respondent/accused, [ENTITY], has been acquitted of an offence punishable under [SECTION] of the [ACT] ( in short, '[ACT]).
Whether reporters of the local papers may be allowed to see the judgment? Yes.
2. The prosecution story, in brief, is that the deceased .
[ENTITY] was married to one [ENTITY] in the month of May 2005, who is son of the accused. The accused had been torturing the deceased for bringing less dowry and had been demanding the same from the deceased. The accused also threatened the deceased to do away with her life. The deceased had been informing her father, PW1 [ENTITY], about the unlawful demands. During 'Lohari' festival in the year 2006, deceased had gone to the house of her father, where she had informed him about the conduct of the accused. However, she was taken back by her husband on the assurance that he would keep her properly. On 20.2.2006, father of the deceased received an information that the deceased [ENTITY] was ill and had been taken to hospital. He went to hospital and found [ENTITY] to be badly burnt. Statement of [ENTITY] was recorded by PW14 ASI [ENTITY] in hospital in the presence of Tehsildar, wherein she stated that she was tortured by her mother-in-law (accused) and brother-in-law, [ENTITY]. She further stated that on 19.2.2006, the accused had come to her room and tortured her, as a result whereof, the deceased after pouring kerosene oil set herself on fire. On the basis of statement of the deceased, an FIR came to 3
be registered initially under [SECTION] [ACT]. The deceased .
succumbed to burn injuries. The post-mortem was conducted.
During investigation, the Investigating Officer visited the spot and prepared the spot map. The police recovered and took into possession the 'duptta', match box, blood stained soil, 'mangal sutra' and half burnt clothes of [ENTITY] from the spot. The police also took into possession canny of kerosene oil. The case property was sent to the chemical examination. After completion of the investigation, challan was prepared and presented in the Court; and the accused was produced to face the trial.
3 In light of arguments advanced by both the parties, it was found that instead of [SECTION] [ACT], a prima facie case under [SECTION] [ACT] was made out against the accused and consequently, charge under [SECTION] [ACT] was framed and put to the accused, to which she pleaded not guilty and claimed trial.
4 The prosecution examined as many as 15 witnesses and upon closer of its evidence, statement of the accused under [SECTION] [ACT] was recorded, wherein she pleaded her innocence, however, she did not lead any evidence in defence.
5 The learned trial court, after evaluating the evidence 4
so adduced before it, acquitted the accused vide judgment dated .
19.3.2010, by concluding that the prosecution has failed to prove charge against the accused under [SECTION] [ACT], constraining the State to file the instant appeal.
6 Learned Additional Advocate General for the State has vehemently argued that the findings recorded by the learned trial court are totally perverse and, therefore, deserve to be set aside, whereas learned counsel for the accused would argue that the findings of acquittal have been correctly recorded by the learned trial court after taking into consideration both factual as well as legal aspect of the case and, therefore, the same call for no interference.
7 We have heard the learned counsel for the parties and have also gone through the record of the case carefully.
8 [SECTION] of [ACT], reads thus:
"306. Abetment of suicide. If any person commits suicide, whoever abets the commission of such suicide, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine."
9 [SECTION] of [ACT] reads thus:
"107. Abetment of a thing. A person abets the doing of a thing, who
(First) Instigates 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.
Explanation 1. 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 facilitate the commission thereof, is said to aid the doing of that act."
10 A plain reading of the aforesaid provisions reveals that to justify the framing of charges under [SECTION] [ACT], the following ingredients must be established:
(i) death due to suicide ;
(ii) accused abets the commission of suicide.
11 Word 'suicide' is not defined in [ACT].
However, meaning and import thereof was considered by the Hon'ble Supreme Court in [PRECEDENT] wherein the Hon'ble Supreme Court observed that word 'suicide' is not defined in the 6
[ACT]. However, its meaning and import is well .
known. The word 'sui' means 'self' and 'cide' means 'killing'. In other words, the act must have been so intended to push the deceased in a situation that the deceased is driven to commit suicide. The Hon'ble Supreme Court in para 17 held as under:
"17. Abetment involves a mental process of instigating a person or intentionally aiding a person in doing of a thing. Without a positive act on the part of the accused to instigate or aid in committing suicide, conviction cannot be sustained. The intention of the Legislature and the ratio of the cases decided by this court is clear that in order to convict a person under [SECTION] [ACT] there has to be a clear mens rea to commit the offence. It also requires an active act or direct act which led the deceased to commit suicide seeing no option and this act must have been intended to push the deceased into such a position that he committed suicide."
12 What is abetment, was considered by the Hon'ble Supreme Court in S.S. Chheena vs. [ENTITY] Mahajan and another (2010) 12 SCC 190 and elaborated the meaning of 'abetment' in para 25 of the judgment as under:
" 25. Abetment involves a mental process of instigating a person or intentionally aiding a person in doing of a thing. Without a positive act on the part of the accused to instigate or aid in committing suicide, conviction cannot be 7
sustained. The intention of the legislature and the ratio of the cases decided by this Court is clear that in order to .
convict a person under [SECTION] [ACT] there has to be a clear mens rea to commit the offence. It also requires an active act or direct act which led the deceased to commit suicide seeing no option and that act must have been intended to push the deceased into such a position that he committed suicide.
26. In the instant case, the deceased was undoubtedly hypersensitive to ordinary petulance, discord and differences which happen in our day-to-day life. Human sensitivity of each individual differs from the other.
Different people behave differently in the same situation".
13 What is instigation, was considered by the Hon'ble Supreme Court in [ENTITY] vs. State of Chattisgarh, [PRECEDENT], and defined the meaning of instigation in para 20 of its report, which reads thus:
"20. 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 present one is not a case where the accused had by his acts or omission or by a continued course of conduct created such circumstances that the deceased was left with no other option except to commit suicide in which case 8
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."
14 In [PRECEDENT], the Hon'ble Supreme Court gave interpretation to the word 'abetment' and 'instigation' in the following manner:
"6. [SECTION] [ACT] defines abetment to mean that a person abets the doing of a thing if he firstly, instigates 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.
9. In [ENTITY] Singh v. State of M.P., 1995 Supp.(3) SCC 731, the appellant was charged for an offence under [SECTION] [ACT] basically based upon the dying declaration of the deceased, which reads as under: (SCC p.731, para1) "My mother-in-law and husband and sister-in-law (husband's elder brother's wife) harassed me. They beat me and abused me. My husband [ENTITY] wants to marry a second time. He has illicit connections with my sister-in-law. Because of these 9
reasons and being harassed I want to die by burning."
10. This Court, considering the definition of 'abetment' under [SECTION] [ACT], found that the charge and conviction of the appellant for an offence under [SECTION] is not sustainable merely on the allegation of harassment to the deceased. This Court further held that neither of the ingredients of abetment are attracted on the statement of the deceased.
11. In [ENTITY] V. State of Chhattisgarh [PRECEDENT], this Court while considering the charge framed and the conviction for an offence under [SECTION] [ACT] on the basis of dying declaration recorded by an Executive Magistrate , in which she had stated that previously there had been quarrel between the deceased and her husband and on the day of occurrence she had a quarrel with her husband who had said that she could go wherever she wanted to go and that thereafter she had poured kerosene on herself and had set fire. Acquitting the accused this Court said: (SCC p.620) "A word uttered in a fit of anger or emotion without intending the consequences to actually follow cannot be said to be instigation. 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 10
suicide, the conscience of the court should not be satisfied for basing a finding that the accused .
charged for abetting the offence of suicide should be found guilty."
12. Reverting to the facts of the case, both the courts below have erroneously accepted the prosecution story that the suicide by the deceased is the direct result of the quarrel that had taken place on 25th July, 1998 wherein it is alleged that the appellant had used abusive language and had reportedly told the deceased 'to go and die'. For this, the courts relied on a statement of [ENTITY], brother of the deceased, made under [SECTION] [ACT]
when reportedly the deceased, after coming back from the house of the appellant, told him that the appellant had humiliated him and abused him with filthy words. The statement of [ENTITY], recorded under [SECTION] [ACT] is annexed as annexure P-3 to this appeal and going through the statement, we find that he has not stated that the deceased had told him that the appellant had asked him 'to go and die'. Even if we accept the prosecution story that the appellant did tell the deceased 'to go and die', that itself does not constitute the ingredient of 'instigation'. The word 'instigate' denotes incitement or urging to do some drastic or unadvisable action or to stimulate or incite. Presence of mens rea, therefore, is the necessary concomitant of instigation. It is common knowledge that the words uttered in a quarrel or in a spur of the moment cannot be taken to be uttered with mens rea. It is in a fit of anger and emotional. Secondly, the alleged abusive words, said to have been told to the deceased 11
were on 25th July, 1998 ensued by quarrel. The deceased was found hanging on 27th July, 1998. Assuming that the .
deceased had taken the abusive language seriously, he had enough time in between to think over and reflect and, therefore, it cannot be said that the abusive language, which had been used by the appellant on 25th July, 1998 drived the deceased to commit suicide. Suicide by the deceased on 27th July, 1998 is not proximate to the abusive language uttered by the appellant on 25th July, 1998. The fact that the deceased committed suicide on 27th July, 1998 would itself clearly pointed out that it is not the direct result of the quarrel taken place on 25th July, 1998 when it is alleged that the appellant had used the abusive language and also told the deceased to go and die. This fact had escaped notice of the courts below."
15 In [PRECEDENT], the Hon'ble Supreme Court observed that there should be intention to provoke, incite or encourage the doing of an act by the latter. Each person has his own idea of self-esteem and self-respect. Therefore, it is impossible to lay down any straitjacket formula in dealing with such cases. Each case has to be decided on the basis of its own facts and circumstances. It is apt to reproduce paras 16 and 17 which read thus:
"Speaking for the three-Judge Bench, in [ENTITY] case [ENTITY], J. (as His Lordship then was) said that .
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 [PRECEDENT] capable of being spelt out. Where the accused had, by his acts or omission or by a continued course of conduct, created such circumstances that the deceased was left with no other option except to commit suicide, in which case, an "instigation" may have to be inferred. A word uttered in a fit of anger or emotion without intending the consequences to actually follow, cannot be said to be instigation.
17. Thus, to constitute "instigation", a person who instigates another has to provoke, incite, urge or encourage doing of an act by the other by "goading" or "urging forward". The dictionary meaning of the word "goad" is "a thing that stimulates someone into action: provoke to action or reaction" (See: Concise Oxford English Dictionary); "to keep irritating or annoying somebody until he reacts" (See: Oxford Advanced Learner's Dictionary - 7th Edition)."
16 In [PRECEDENT], it is held by the Hon'ble Supreme Court that offence of abetment by instigation depends upon intention of person who abets and not upon act which is done by 13
person who has abetted. The abetment may be by instigation, .
conspiracy or intentional aid as provided under [SECTION] [ACT]. A reasonable certainty to incite the consequences must be capable of being spelt out. A continued course of conduct which creates such circumstances that deceased was left with no other option but to commit suicide would satisfy the ingredients of instigation to commit suicide or abetment of suicide. It is apt to reproduce paras 16 to 18 of the judgment as under:
"16. This Court in [ENTITY] v. State of Chhattisgarh, while dealing with a similar situation observed that what constitutes 'instigation' must necessarily and specifically be suggestive of the consequences. A reasonable certainty to incite the consequences must be capable of being spelt out. More so, a continued course of conduct is to create such circumstances that the deceased was left with no other option but to commit suicide.
17. The offence of abetment by instigation depends upon the intention of the person who abets and not upon the act which is done by the person who has abetted. The abetment may be by instigation, conspiracy or intentional aid as provided under [SECTION] [ACT]. However, the words uttered in a fit of anger or omission without any intention cannot be termed as instigation. (Vide: [PRECEDENT]; [PRECEDENT]; Kishori Lal v. State of 14
M.P., AIR 2007 SC 2457; and [PRECEDENT].) .
18. In fact, from the above discussion it is apparent that instigation has to be gathered from the circumstances of a particular case. No straight-jacket formula can be laid down to find out as to whether in a particular case there has been instigation which force the person to commit suicide. In a particular case, there may not be direct evidence in regard to instigation which may have direct nexus to suicide. Therefore, in such a case, an inference has to be drawn from the circumstances and it is to be determined whether circumstances had been such which in fact had created the situation that a person felt totally frustrated and committed suicide. More so, while dealing with an application for quashing of the proceedings, a court cannot form a firm opinion, rather a tentative view that would evoke the presumption referred to under [SECTION] [ACT]".
17. Similar issue recently came up for consideration before the Hon'ble Supreme Court in [PRECEDENT] and it was observed in paragraphs 9, 11, 12, 13 and 17 as under:
"9. Mr. [ENTITY], learned counsel appearing for the respondent Nos.1 and 2, per contra, would contend that the High Court has justifiably quashed the 15
investigation, for [ENTITY], the deceased, was holding a superior rank and there is nothing to suggest that the .
respondents had instigated him or done any activity that had left the deceased with no option but to commit suicide. He has placed reliance upon [PRECEDENT] and [PRECEDENT], Represented by the Deputy Superintendent of Police, (2011) 3 SCC 626.
11. The aforesaid provision was interpreted in [PRECEDENT] by a two-Judge Bench and the discussion therein is to the following effect:-
"[SECTION] [ACT] defines abetment of a thing. The offence of abetment is a separate and distinct offence provided in [ACT]. A person, abets the doing of a thing when (1) he instigates any person to do that thing; or (2) engages with one or more other persons in any conspiracy for the doing of that thing; or (3) intentionally aids, by act or illegal omission, the doing of that thing. These things are essential to complete abetment as a crime. The word "instigate"
literally means to provoke, incite, urge on or bring about by persuasion to do any thing. The abetment may be by instigation, conspiracy or intentional aid, as provided in the three clauses of [SECTION]. [SECTION] provides that if the act abetted is committed in consequence of abetment and there is no provision for the punishment of such abetment, then the offender is to be punished with the punishment provided for the original offence.
"Abetted" in [SECTION] means the specific offence abetted. Therefore, the offence for the abetment of .
which a person is charged with the abetment is normally linked with the proved offence."
12. In [PRECEDENT] dealing with expression of abetment the Court observed:-
"The expression "abetment" has been defined under [SECTION] [ACT] which we have already extracted r above. A person is said to abet the commission of suicide when a person instigates any person to do that thing as stated in clause Firstly or to do anything as stated in [SECTION] [ACT]. [SECTION] [ACT] provides that if the act abetted is committed pursuant to and in consequence of abetment then the offender is to be punished with the punishment provided for the original offence. Learned counsel for the respondent State, however, clearly stated before us that it would be a case where [SECTION] [ACT] only would be attracted. According to him, a case of abetment of suicide is made out as provided for under [SECTION] [ACT]."
13. As we find from the narration of facts and the material brought on record in the case at hand, it is the suicide note which forms the fulcrum of the allegations and for proper appreciation of the same, we have reproduced it herein-before. On a plain reading of the same, it is difficult to hold that there has been any abetment by the 17
respondents. The note, except saying that the respondents compelled him to do everything and cheated him and put .
him in deep trouble, contains nothing else. The respondents were inferior in rank and it is surprising that such a thing could happen. That apart, the allegation is really vague. It also baffles reason, for the department had made him the head of the investigating team and the High Court had reposed complete faith in him and granted him the liberty to move the court, in such a situation, there was no warrant to feel cheated and to be put in trouble by the officers belonging to the lower rank. That apart, he has also put the blame on the Chief Judicial Magistrate by stating that he had put pressure on him. He has also made the allegation against the Advocate.
17. We have quoted in extenso from the said judgment and we have no hesitation in stating that the suicide note therein was quite different, and the Court did think it appropriate to quash the proceedings because of the tenor and nature of the suicide note. Thus, the said decision is distinguishable regard being had to the factual score exposited therein."
18 Thus, what can be taken to be settled is that the abetment involves a mental process of instigating a person or intentionally aiding a person in doing of a thing.
19 Having set out the legal position, we now advert to the factual aspect of the case.
20 The case of the prosecution is based on so called .
suicide note, Ext.PW14/B, which was written by PW14 ASI [ENTITY], wherein the deceased has stated that the accused had been torturing her. She has also stated that she used to reside in a separate room and on 19.2.2006, the accused had come to her room and started troubling her and as a result of torture, on 20.2.2006 she poured kerosene oil and set herself on fire. However, in case dying declaration, Ext.PW14/B is minutely analyzed, it would be noticed that there are no specific allegations of alleged torture. Nowhere, the deceased has stated that how and in what manner, she was tortured by the accused.
The allegations are far too general. That apart, there is nothing in Ext.PW14/B to even remotely suggest that the accused had been demanding dowry articles from the deceased or that the deceased had been tortured and harassed by the accused for not bringing dowry. There is not even a single allegation that the deceased had been beaten on account of not bringing dowry.
Therefore, in absence of any specific allegation in Ext.PW14/B, it cannot be held that infact the accused was responsible for the suicide of [ENTITY].
21 In the present case, there is no material on record to .
indicate or suggest that the deceased was of a weak or meek temperament and knowing so, the accused had extended threats to the deceased and, therefore, she was left with no other option, but to commit suicide.
22 That apart, it would be noticed that even as per the prosecution case, the deceased had sustained more than 90% burn injuries as deposed by PW6 Dr. [ENTITY] and PW15 Dr. [ENTITY]. It is the case of the prosecution that initially the deceased was not found to be fit to give statement. However, the unit doctor is alleged to have given the report, Ext.PW14/A that [ENTITY] was fit to give statement on 20.2.2006 at 1.30 P.M., but the said doctor has not been examined by the prosecution.
Therefore, in absence of unit doctor being not examined coupled with there being no plausible explanation for his non-
examination, this Court is left with no other option, but to draw an adverse inference against the prosecution as it is more than settled that normally a person who had suffered 95% burn injuries, it would be highly improbable that such person could even speak and, therefore, the alleged dying declaration, 20
Ext.PW14/B in such circumstances cannot be held to be .
reliable.
23 As observed earlier the unit doctor, who is alleged to have appended the note, Ext.PW14/A has not been examined and it was he alone, who could have proved that the deceased [ENTITY] at the relevant time was fit to give statement, more particularly when the alleged dying declaration, Ext.PW14/B has not been recorded in the presence of doctor. Even though, the dying declaration, Ext.PW14/B, is alleged to have been recorded in the presence of PW4, [ENTITY], the then Tehsildar, Dharamshala, but he has categorically stated that even though he had attested the dying declaration, but he did not verify from the doctor as to whether [ENTITY] was fit to give statement.
Moreover, attestation report, Ext.PW4/A reveals that the speech of [ENTITY] was lisp, which clearly means that when dying declaration was recorded, speech of [ENTITY] was not clear, rather it was defective. In such circumstances, the learned trial court committed no error by concluding that the prosecution had failed to prove the statement Ext.PW14/B to be voluntary and fit enough to be considered as a dying declaration of [ENTITY].
24 As discussed above, there are no specific allegations .
in FIR, Ext.PW14/D regarding maltreatment allegedly given to [ENTITY] by the accused and, therefore, in the given circumstances we have to then fall back on other evidence led by the prosecution.
25 PW1, [ENTITY], father of the deceased has deposed that the accused had been demanding dowry from his deceased daughter. He has specifically deposed that the accused had demanded fridge and television as was told to him by his daughter. However, no such allegations have been set out in the FIR, Ext.PW14/D. In cross-examination, he stated that his family as well as that of accused was poor and it was for this reason that the marriage of his daughter was simple. Notably, there is no allegation made even by PW1 [ENTITY] that at the time of marriage, the accused had demanded any dowry. He has also not made any allegation about demand of dowry in his statement recorded by the police during the course of the investigation. Even though, he has tried to explain that it was due to mental state that he could not state these facts to the police, but the said explanation cannot for obvious reasons be accepted because had the daughter of PW1 [ENTITY] been 22
tortured by the accused and had there been demand for dowry, .
these facts could have conveniently been brought to the notice of any person like the Pradhan of the village or any authority like the police or Panchayat etc. Therefore, in such circumstances, testimony of PW1 [ENTITY] is neither convincing nor can be relied upon to conclude that the accused had been torturing the deceased and due to this reason, the deceased was left with no other option, but to commit suicide.
26 The prosecution has also examined aunt of the deceased PW3, [ENTITY], who too has made general statement that the accused had been taunting the deceased for bringing less dowry. She further deposed that once [ENTITY] had come to her house, from where she telephonically informed her mother and requested her to come and take her, upon which parents of [ENTITY] and uncle had come and taken her back from the house of the accused. However, such version of PW3 [ENTITY] is not supported by the father of the deceased.
27 The prosecution has then examined the ward member of the Panchayat, PW13 [ENTITY], however, he betrayed his ignorance as to how [ENTITY] was treated by the accused. He further added that he had no idea that on account 23
of quarrel between [ENTITY] and the accused, [ENTITY] had left the .
house. This witness was declared hostile and was cross-
examined by the Public Prosecutor, but nothing adverse could be elicited from his cross-examination.
28 Judged in light of the aforesaid discussion, we are clearly of the view that the prosecution has miserably failed to establish that the death by commission of suicide was desired object of the accused and with that view she had instigated, goaded, urged or encouraged [ENTITY] to commit suicide. There is no evidence led by the prosecution that the accused had instigated, provoked or incited [ENTITY] to commit suicide.
Therefore, in absence of any such evidence, the findings of acquittal recorded by the learned trial court cannot be said to be perverse and, therefore, warrant no interference.
29. Even otherwise, it is more than settled that in criminal jurisprudence, an accused is presumed to be innocent till he is convicted by a competent court of law after full-fledged trial and once the trial court by cogent reasoning acquits the accused then the reaffirmation of his innocence places more burden on the appellate Court while dealing with the appeal. Even though there are no fetters on the power of the appellate court to review, 24
re-appreciate and reconsider the evidence, both on facts and law .
upon which the order of acquittal can be passed, but the Court has to be more cautious in interfering in an appeal unless there are compelling and substantial grounds to interfere with the order of acquittal.
30. In view of the aforesaid discussion, we find no merit in the appeal and the same is dismissed accordingly. Pending application(s), if any, also stands dismissed. Bail bonds, if any, furnished by the accused are ordered to be discharged.
([ENTITY]) Judge ([ENTITY]) Judge 10.11.2017 (pankaj)