CRA No.1877-SB of 2002 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Criminal Appeal No.1877-SB of 2002 Date of Decision: 24.08.2010 Jagdev Singh alias Jaggi .......Appellant Versus State of Punjab .......Respondent CORAM:- HON'BLE MR.JUSTICE JITENDRA CHAUHAN Present: Mr. A.P.S. Deol, Sr. Advocate, with Mr. Amrinder Chahal, Advocate, for the appellant. Mr. Mehardeep Singh, DAG, Punjab. **** JITENDRA CHAUHAN, J. 1. The present appeal is preferred by appellant-Jagdev Singh @ Jaggi against the judgment dated 20.11.2002 (hereinafter as 'impugned judgment), delivered by the learned Additional Sessions Judge, Bathinda (hereinafter as 'trial Court'), convicting the accused-appellant for the offence punishable under Section 306 IPC and order of sentence of the same date i.e., 20.11.2002, thereby sentencing him to undergo rigorous imprisonment for a period of 7 years and to pay a fine of Rs.5,000/- and in default of payment of fine, to further undergo rigorous imprisonment for a period of six months. 2. The facts of the case, as narrated in para 2 of the impugned judgment, reads as under:- “2. Briefly stated, the facts unfolded by Harpal Kaur CRA No.1877-SB of 2002 -2- wife of Pritam Singh, Jat, resident of Village Selbrah is that she is resident of Village Selbrah and is married to Pritam Singh son of Pooran Singh about 11 years ago. Her another sister Paramjit Kaur is married to Iqbal Singh son of Gurtej Singh, resident of Village Bhagu and one of her sisters Chhinder Pal Kaur is married to the younger brother of her husband namely Sukhdev Singh. The house of Sukhdev Singh and the complainant abut to each other. Sham Kaur her mother-in-law resides with Jagdev Singh alias Jaggi who is the younger brother of her husband. She used to bring Paramjit Kaur to her sister's daughter named Sukhvir Kaur to her house earlier also for some domestic work who was aged about 14 years. She had also brought Sukhvir Kaur to her house about 25 days prior to the occurrence. On 3.9.1996, her sister Chhinder Pal Kaur along with her children had gone to her parents' village Makka Sar whereas younger brother of her husband Sukhdev Singh had gone for some avocation in the village. She asked Sukhvir Kaur to shut the outer door of the house of Chhinder Pal Kaur and return. But her neice did not return for some time and then she sighted towards the house of Chhinder Pal Kaur and found Jagdev Singh alias Jaggi compelling her niece Sukhvir Kaur to elope away with him whereas Sukhvir Kaur was insisting that such an act can tarnish the reputation of her parents and other relations. Upon which Jagdev Singh provoked her saying that if she does not flee away with him, it would be better if she commits CRA No.1877-SB of 2002 -3- suicide. He (Jagdev Singh) also gave some poisonous substance to Sukhvir Kaur, which she consumed after she was compelled by Jagdev Singh with a glass of water. Seeing all this, she (complainant) scaled over the well and entered into the house of Chhinder Pal Kaur and before her eyes Sukhvir Kaur fell on the ground and started vomiting. The entire occurrence was witnessed by her in the electric light, which was available in the court-yard. Ultimately, Sukhvir Kaur breathed her last. In the meantime, her brother-in-law Sukhdev Singh came and she narrated the entire episode to him. Immediately thereafter Sukhdev Singh along with her husband went to Village Bhagu to inform the parents of Sukhvir Kaur and on the next morning at about 9-00 a.m. Iqbal Singh father of Sukhvir Kaur, Ram Singh and other residents of Village Bhagu reached at Village Selbrah. Thereafter, when the complainant along with Iqbal Singh father of Sukhvir Kaur, Ram Singh, Pritam Singh and Ex. Sarpanch Hari Singh of Village Selbrah was going to the Police Station for reporting the matter, the police party met her which was headed by A.S.I. Paramjit Singh at bus stand Harnam Singh Wala. She got recorded her statement, Ex.PE, the contents of which were read over and explained to her and she appended her Right Thumb Impression. The said statement was sent to the Police Station by A.S.I. Paramjit Singh for the registration of the case on the basis of which formal FIR Ex.PE/1 was put into black & white by the S.H.O. Police Station Phul....” CRA No.1877-SB of 2002 -4- 3. After registration of FIR and conducting necessary investigation of the case, final report under Section 173 Cr.P.C. was filed against the accused-appellant and he was charge-sheeted under Section 306 IPC to which the accused pleaded not guilty. 4. In order to substantiate the charge against the accused-appellant, the prosecution examined Dr. Krishan Gopal, Emergency Medical Office, Civil Hospital, Rampura, who conducted the autopsy of the dead body of deceased-Sukhvir Kaur as PW1, Sub Inspector Iqbal Singh as PW2; Iqbal Singh, father of the deceased as PW2/A; Harpal Kaur, complainant, who is mother of the deceased as PW3; Inspector Bhupinder Singh as PW4; HC Nachattar Singh as PW5; HC Ajaib Singh as PW6; HC Gur Parvinder Singh as PW7 and C-I Gurdeep Singh as PW8. Report of the Chemical Examiner, Ex.PJ, was also tendered in evidence. 5. The statement of accused-appellant under Section 313 Cr.P.C. was recorded wherein he denied the occurrence and pleaded false implication. He also tendered letters Ex.DA and Ex.DB in evidence. However, no witness was examined in defence. 6. Learned trial Court, after hearing both the parties and considering the evidence/material on record, had convicted the accused under Section 306 of IPC and sentenced him for the term as indicated in para 1 of this judgment. Hence this appeal. 7. Learned counsel for the appellant has contended that during the trial, only Harpal Kaur, PW3, came forward to support the prosecution story along with Iqbal Singh, PW2 (father of the deceased), while other material witnesses, namely, Sukhdev Singh (Masad), Sukhbir Kaur, Pritam Singh (husband of Harpal Kaur) and Paramjit Kaur (mother of the deceased) and CRA No.1877-SB of 2002 -5- certain other residents of village Bhangu, cited as witnesses, were given up by the prosecution. Therefore, learned counsel has argued that there is no corroboration of the sole testimony of Harpal Kaur, PW3, which is of interested nature on account of close relation with the deceased, being her Aunt (Mausi). 8. Learned counsel has further argued that the letter, Ex.DA, was taken into possession by ASI Paramjit Singh during the investigation of the case, as per admission made by HC Nachhatar Singh (PW5), in his cross examination. He has further argued that the authenticity of said letter Ex.DA, written by Sukhbir Kaur (since deceased) in which she has expressed her love for the appellant as well as letter, Ex.DB, written by her Aunt (Mausi)-Manjit Kaur, is duly proved. The contents of letter Ex.DA clearly establish that Sukhbir Kaur (deceased) had made reference of Manjit Kaur in her letter addressed to the appellant, as she had come to know the fact that appellant-Jagdev Singh was likely to get married with Manjit Kaur. Therefore, learned counsel has argued that the deceased-Sukhbir Kaur was in a state of frustration. Learned counsel has further argued that there is complete corroboration in this regard from the letter dated 4.8.1999, Ex.DB, written by Manjit Kaur to Jagdev Singh (appellant) from her parental village Makasar (Rajasthan). In this letter, Jagdev Singh has been addressed as 'Jija' by Manjit Kaur with a view to get the matrimonial proposal initiated through Pritam Singh, who is husband of the complainant-Harpal Kaur as she may not have the courage to talk to her parents directly in this regard. Learned counsel has further pointed out that this letter, bearing postal stamp of 4.8.1999, was written just one month prior to the date of committing suicide by Sukhbir Kaur. CRA No.1877-SB of 2002 -6- 9. Learned counsel has further argued that the failure of love expressed by the deceased for the appellant in maturing into marriage could not have been anticipated by the accused that the deceased would go to the extent of committing suicide. Therefore, the appellant cannot be said to have even remotely abetted the deceased to commit suicide. Learned counsel has referred to the judgment of this Court in Narinder Singh @ Bablu Vs. State of Haryana, 1997 (2) RCR (Criminal) 669. 10. Learned counsel has submitted that there is inordinate and unexplained delay in lodging the FIR. The explanation given by the complainant-Harpal Kaur with regard to the delay is not supported either by her husband Pritam Singh or her brother-in-law (Jeth) and Sukhdev Singh, who were present in the house on the fateful night. Neither of them was examined by the prosecution. This casts aspersions on the genuineness of the prosecution story which was coined on 4.9.1996 at 12.05 pm i.e., after a delay of 15 hours, whereas the alleged incident took place on the previous night i.e. on 3.9.1996 at 9.00 pm. Learned counsel, thus, submits that there was considerable time available with Harjit Kaur to coin this false allegation that the appellant was prompting Sukhbir Kaur to consume a tablet along with a glass of water and the deceased happily obliged him. 11. Learned counsel has next argued that the provisions of Section 306 IPC are not attracted in the instant case. 12. On the other hand, learned counsel for the State has argued that in view of the statement of complainant-Harpal Kaur, PW3, the case of the prosecution is proved beyond reasonable doubt and, therefore, does not call for any interference by this Court. 13. I have heard learned counsel for the parties and perused the CRA No.1877-SB of 2002 -7- record. 14. From the perusal of the letter Ex.DA written by the deceased to the appellant, it is clearly established that the deceased Sukhbir Kaur was deeply in love with the appellant and wanted to marry him. The said letter was taken into possession during the investigation by ASI Paramjit Singh, who could not be examined on account of his death during trial. But this fact is duly admitted in the statement of HC Nachhatar Singh, PW5. The contents of letter Ex.DB written by Manjit Kaur to the appellant is of great relevance to accord corroboration to the case of the appellant. The act of the deceased in committing suicide is demonstration of her frustration and feeling of sacrificing her life for appellant after she came to know the fact that Manjit Kaur was also in love with the appellant, Jagdev Singh. Thus, in my opinion, both the letters establish vital link with regard to the cause of death of Sukhbir Kaur and this piece of documentary evidence has been wrongly ignored by the learned trial Court. 15. As regards the submission that the conviction is recorded solely on the basis of testimony of Harpal Kaur, who happened to be an interested witness, I feel that Harpal Kaur, along with her husband-Pritam Singh and Sukhdev Singh, was present in the house at the time of occurrence. Only Harpal Kaur (complainant) and Iqbal Singh, father of the deceased, supported the case of the prosecution while other material witnesses namely Sukhdev Singh, uncle (Masad) of Sukhbir Kaur, Pritam Singh, husband of the complainant, Harpal Kaur and Paramjit Kaur, mother of the deceased, residents of village Bhagu, were cited in the list of witnesses attached with the report under Section 173 Cr.P.C. but they all were given up. In my considered opinion, Pritam Singh and Sukhdev Singh, being present at the CRA No.1877-SB of 2002 -8- spot at the time of occurrence like the complainant, Harpal Kaur, were the material witnesses but there is no explanation as to why they were not examined, therefore, I have no hesitation to hold that there is no corroboration to the sole testimony of Harpal Kaur, who is otherwise an interested witnesses, being closely related to the deceased. 16. A perusal of the record reveals that there is no material on the basis of which it could be said that accused-appellant had promised the deceased to marry her, although it is proved that the deceased was deeply in love with the accused-appellant. There is absolutely nothing on record, except the statement of Harpal Kaur, to show that Jagdev Singh prompted Sukhbir Kaur to consume tablet with water, as alleged by the prosecution. The deceased was in love with the appellant and wanted to marry him. Therefore, in the ordinary course, she would not accept to die like this, and rather prompt the appellant to elope with her whom she loved very deeply. Before proceeding further, it is deemed appropriate to reproduce Section 107, which reads as under:- “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. CRA No.1877-SB of 2002 -9- 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 facilitates the commission thereof, is said to aid the doing of that act.” 17. The question of abetment, as defined under Section 107 IPC in the context of love affair between the accused and the deceased where the deceased could not succeed in marrying the accused and committed suicide, was examined by this Court in Narinder Singh's case (supra). This Court observed as under:- ''2. The gravamen of the allegations against the petitioner are that he was in affair with a girl by the name of Manjeet Kaur and the latter could not become successful in marrying herself with the petitioner which frustration ultimately led to the commission of suicide on the part of the girl. On these allegations the criminal case under Section 306 IPC was registered against the petitioner. During the course of investigation certain letters allegedly written by the deceased have been taken by the investigating officer CRA No.1877-SB of 2002 -10- indicating a love affair of the deceased with the petitioner and her utmost faith in the petitioner that he would marry her. The deceased unfortunately could not succeed in her desire and could not marry him and she committed suicide by taking poisonous substance. Section 306 of the Indian Penal Code lays down:- “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''. The abetment again is a matter of definition under Section 107 IPC and it states that : “A person abets the doing of a thing who instigate any person to do that thing, or engages with one or more other person or persons in any conspiracy for the doing that thing, if an act of illegal omission takes place in pursuance of that conspiracy, and in order to the doing of that thing; or intentionally aids, by any act or illegal omission, the doing of that act. Explanation added to Section 107 IPC also lays down that 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 CRA No.1877-SB of 2002 -11- thing to be done, is said to instigate the doing of that thing. 3. A combined reading of provisions of Sections 306 and 107 IPC clearly comes to this that there must be a direct nexus between effect of abetment and the abetment itself. There is not an iota of evidence collected by the investigating officer that petitioner Narinder Singh at any point of time instigated the deceased to commit suicide in the failure of their desire of maturity of their relationship. The language and the letters quoted by the investigating officer during the course of investigation indicate that the deceased and the petitioner were two intimate souls and perhaps at one point of time the petitioner might have promised with the deceased for the marriage but at no point of time the petitioner ever made representation to the deceased that in the failure of their affair maturing into marriage, the deceased would punish herself by adopting extreme steps. In such a situation, it cannot be said even remotely that the petitioner ever abeted or tried to abet the deceased in order to take her valuable life. If the deceased out of her poor frustration had adopted and abeted to finish herself by resorting to the method unapproved by the Society no blame can be given to the petitioner and the petitioner cannot be dragged to prosecution.” CRA No.1877-SB of 2002 -12- 18. The observations made in this judgment are fully applicable to the facts and circumstances of the present case, since the letters do not suggest that the accused Jagdev Singh made a false promise of performing marriage with Sukhbir Kaur and thereafter failed to fulfill the promise. In the instant case, it was rather Sukhbir Kaur who, on realising that Jagdev Singh is going to get married with her aunt-Manjit Kaur led her to take the extreme step as can be inferred from the letter Ex.DA. Therefore, in the circumstances, it cannot be said that the story built up by the prosecution, which is based on the statement of Harpal Kaur, is more probable than the defence plea. 19. Admittedly, there is delay of 15 hours in lodging the FIR. No explanation has been put forth by Harpal Kaur, PW2, in this regard. Both, i.e., her husband-Pritam Singh and brother-in-law (Jeth)-Sukhdev Singh, were present in the house on the fateful night. Thus, non-examination of both these material witnesses casts aspersions on the genuineness of the prosecution story which appears to have coined at the behest of Harpal Kaur. 20. It is further relevant to note that in the instant case, the act of Sukhbir Kaur in committing suicide would not attract the provisions of Section 306 IPC. In order to substantiate a charge under this Section, there has to be clear mens-rea to commit the offence and that act must have been intended to push the deceased into such a position that he or she is forced to commit suicide. Similar question was dealt with by Hon'ble the Supreme Court in S.S. Chheena Vs. Vijay Kumar Mahajan and another (SLP (Crl) No.6811 of 2009) which reads as thus:- "28. Abetment involves a mental process of CRA No.1877-SB of 2002 -13- 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 306 IPC, 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. 30. When we carefully scrutinize and critically examine the facts of this case in the light of the settled legal position the conclusion becomes obvious that no conviction can be legally sustained without any credible evidence or material on record against the appellant. The order of framing a charge under Section 306 IPC against the appellant is palpable erroneous and unsustainable. It would be travesty of justice to compel the appellant to face a criminal trial without any credible material whatsoever. Consequently, the order of framing charge under Section 306 IPC against the appellant is quashed and all proceedings pending against him are also set aside." 21. In view of the above discussion, the present appeal is allowed and CRA No.1877-SB of 2002 -14- the judgment and order dated 20.11.2002 passed by the learned Additional Sessions Judge, Bathinda, is set aside. The appellant is stated to be on bail. His bail bonds shall stand discharged. ( JITENDRA CHAUHAN ) August 24, 2010 JUDGE atulsethi Note : Whether to be referred to reporter - Yes / No