Crl.Appeal No.841-SB of 1998 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Crl.Appeal No.841-SB of 1998 Date of Decision:08.03.2010 Rani and another .....Appellants Versus The State of Haryana .....Respondent CORAM: HON'BLE MR.JUSTICE MEHINDER SINGH SULLAR Argued by: Mr.Sunil Panwar, Advocate, for the appellants. Mr.G.S.Chahal, Additional Advocate General, Haryana, for the respondent-State. **** MEHINDER SINGH SULLAR, J.(Oral) Impugning the judgment of conviction and order of sentence dated 01.09.1998, appellants-Rani and Bhawani @ Girgu, have directed the present appeal, vide which they were convicted and sentenced to undergo rigorous imprisonment for a period of three years, to pay a fine of Rs.3,000/- each and in default of payment of fine, to undergo further rigorous imprisonment for a period of six months, for the commission of offence punishable under Section 306 read with Section 34 IPC by the trial court. 2. The matrix of the facts and evidence unfolded during the trial, emanating from the record, culminating in the commencement and relevant for disposal of the present appeal, is that the marriage of appellant-Rani was solemnised with Ram Singh son of Basanta, according to Hindu rites and ceremonies. As Ram Singh was unable to earn his livelihood in village Pithrawas, therefore, he shifted from there and started the business of embroidery and was living with his wife Rani in Shiv Colony, Rewari. The Crl.Appeal No.841-SB of 1998 2 prosecution claimed that appellant-Bhawani was having illicit relations with appellant-Rani and he oftenly used to visit her house at Rewari. 3. The case of the prosecution further proceeds that on 13.06.1996, Ram Singh consumed some poisonous substance and appellant- Rani took him to Civil Hospital. He could not be saved and died. In the wake of medical ruqa(Ex.PE), PW10-ASI Vijay Kumar reached the hospital, prepared the inquest proceedings, recorded and incorporated the statements of appellant-Rani, PW7-Basanta, father of the deceased and Lala Ram son of Hoshiar Singh in the inquest report(Ex.PD). As is evident from the evidence on record that after his(Ram Singh) death, appellant-Rani resided for some time with her parents-in-laws in village Pithrawas and, thereafter, in her house in Shiv Colony, Rewari. Nobody raised any accusing finger against her till the present case was registered on 07.09.1996 in this regard. 4. Levelling a variety of allegations in all according to the prosecution, that on 13.06.1996, the appellants in furtherance of their common intention abetted, compelled and steered Ram Singh to commit suicide. On the basis of aforesaid allegations and in the wake of undated complaint(Ex.PI) of PW9, written to his Commanding Officer at Madras, the present case was registered against the appellants, vide FIR No.287 dated 07.09.1996(Ex.PI/1), on accusation of having committed an offence punishable under Section 306 read with Section 34 IPC by the police of Police Station, City Rewari, in the manner indicated here-in-above. 5. After completion of the investigation, final police report/challan was submitted against the appellants to face the trial for the aforesaid offence. Since, the case was triable by the court of sessions, so the Chief Judicial Magistrate, Rewari, committed the same for trial to the court of sessions, vide his commitment order dated 04.01.1997. They appeared before the court of sessions in pursuance of commitment of the case. 6. Having completed all the codal formalities, the appellants were charge-sheeted by the trial Judge, for the commission of offence punishable under Section 306 read with Section 34 IPC, vide order dated 15.05.1997. As, they did not plead guilty and claimed trial, therefore, the case was slated for evidence of the prosecution. 7. The prosecution in order to substantiate the charges framed Crl.Appeal No.841-SB of 1998 3 against the appellants examined PW1-Dr.Sudershan Panwar, PW2-Retd. Inspector Sat Pal, PW3-Mahavir Singh, Draftsman, PW4-Head Constable Abhey Singh, PW5-Constable Rohtas, PW6-Smt.Surji wife of Basanta, PW7-Basanta son of Bhuru, PW8-Head Constable Jai Pal, PW9- complainant Ram Avtar son of Basant Lal and PW10-ASI Vijay Singh, in oral evidence, besides tendering into evidence certain documents and the same will be referred to at the appropriate places in the subsequent part of this judgment, in order to avoid repetition. 8. After the close of the prosecution evidence, the statements of the appellants were recorded. The entire incriminating material/evidence was put to enable them to explain any circumstances appearing in the evidence against them, as contemplated under Section 313 Cr.P.C. They have stoutly denied the evidence of the prosecution in its entirety and pleaded false implication. Appellant-Rani has taken a specific plea of defence in the following manner:- “The case is a counter-blast, to shut the demand of maintenance and dowry articles and also to cover up the own fault by which they harassed and pressurized Ram Singh, prior to his death, for payment of the balance amount of Giarsi's Bhat ceremony. I am innocent. I have been falsely implicated in this case”. 9. Appellant-Rani in order to corroborate her defence plea examined DW1 Ratti Ram son of Ram Narain. According to him, about four/five years prior to the present occurrence, once he was called at Police Post Kund in connection with the complaint of Smt.Rani against her in-laws that she was not being treated well by them. She was not even permitted to use residential accommodation and her parents-in-laws used to level false allegations against her. On the asking of the police, he and some other persons intervened and ultimately, the matter was patched up. 10. The trial Judge, after taking into consideration the evidence on record, convicted and sentenced the appellants, in the manner described here-in-above. 11. The appellants did not feel satisfied with the impugned judgment of conviction and order of sentence and filed the present appeal. That is how I am seized of the matter. Crl.Appeal No.841-SB of 1998 4 12. Assailing the impugned judgment, at the very outset, learned counsel for the appellant has contended with some amount of vehemence that the story of the prosecution is highly improbable, there is an inordinate and unexplained delay of about more than 2-¾ months in lodging the FIR, which is fatal to the prosecution case and the police has forged, fabricated the evidence against the appellants. The argument further proceeds that the appellants have been falsely implicated by PW9 Ram Avtar (brother of the deceased) in order to deprive appellant-Rani to inherit the property of her deceased husband and also the present case is a counter-blast to the complaint already filed by her against them. Raising a variety of arguments in all, according to the learned counsel that as the evidence brought on record by the prosecution, is false, fabricated, discrepant and unreliable, therefore, the appellants deserve to be acquitted in this regard. 13. Hailing the impugned judgment, on the contrary, learned State Counsel has admitted that no doubt there is a delay of about more than 2-¾ months in lodging the FIR, but he still urged that the evidence produced by the prosecution is sufficient, the trial court has rightly convicted the appellants and no interference is warranted in this connection. 14. Having heard the learned counsel for the parties, having gone through the evidence on record with their valuable help and after bestowal of thoughts over the entire matter, to my mind, it would be expedient to have a brief resume of the evidence brought on record by the prosecution, in order to decide, the real controversy between the parties and the points involved in this appeal. 15. The first to note is the testimony of PW1-Dr.Sudarshan Panwar,Medical Officer, who has stated that on 13.06.1996, on the police request(Ex.PA), he conducted the post-mortem examination on the dead body of Ram Singh deceased vide post-mortem report(Ex.PB). The dead body was identified by Basant Lal, father of the deceased and Lala Ram son of Hoshiar Singh. PW1 maintained that the cause of death in this case was chemical poisoning and time elapsed between consumption and death within 12 hours and between death and post-mortem within 36 hours. 16. According to PW2- Retd. Inspector Sat Pal, he prepared and submitted police report under Section 173 Cr.P.C. on 27.11.1996. PW3- Mahavir Singh, Draftsman, prepared the scaled site plan(Ex.PC) of the Crl.Appeal No.841-SB of 1998 5 place of incident on 17.12.1996 on the pointing of ASI Vijay Kumar. 17. Likewise, PW4-Head Constable Abhey Singh stated that on 13.06.1997(Sic) in the wake of ruqa from the Civil Hospital, Rewari, with regard to the death of Ram Singh due to consumption of poison, he reached the hospital and conducted the inquest report(Ex.PD). He also recorded the statements of the witnesses and sent the dead body to the hospital for its post-mortem examination along with the inquest report. PW5-Constable Rohtas Singh and PW8-Head Constable Jai Pal, are the formal witnesses, who have only tendered into evidence their affidavits, Exs.PF and PH, respectively. 18. The next to observe is the testimony of PW6-Smt.Surji(mother of the deceased) wife of Basanta, who has, inter alia, deposed that his son Ram Singh used to live in Shiv Colony, Rewari at the time of his death along with his wife-Rani. Rani used to leave the house without any permission very often and was having illicit relations with Bhawani @ Girgu. She along with her husband used to visit the house of her son Ram Singh very often and about fifteen days prior to his death, when they went there, accused-Bhawani was already there. Her son informed them number of times regarding illicit relations of his wife Rani with accused-Bhawani. She tried to pacify accused-Bhawani but to no effect. Her son Ram Singh used to remain under tension and was also perturbed due to this illicit relationship. Her son himself noticed his wife with the accused in the compromising condition and also mentioned these facts in his diary. He also tried to pacify his wife but she refused saying that she would like to live with accused Bhawani and out of this frustration, her son Ram Singh might have committed suicide. 19. Sequelly, PW7-Basanta son of Bhuru, father of the deceased maintained that accused-Rani was having illicit relations with accused Bhawani. He used to visit the house of his son Ram Singh very often. He tried to persuade him but to no effect. His son also disclosed this fact to him. He met the father of accused Rani and informed regarding this, but to no effect. His son used to remain disturbed due to this relationship of his wife with accused Bhawani and ultimately, he committed suicide. According to PW7, his son also informed him that he himself found Rani with accused Bhawani in the compromising condition. Although, he went Crl.Appeal No.841-SB of 1998 6 to the police station but no action was taken by the police. His son Ram Singh used to maintain a diary(Ex.P1), which he had handed over to the police along with some photographs(Exs.P2 to P10), which were taken into possession by the police vide recovery memo(Ex.PG). It may be mentioned here that during the course of trial, the exhibition of photographs were objected to by the defence counsel and the objections were kept open for its decision at the time of arguments. 20. The next to mention is the testimony of PW9-complainant Ram Avtar son of Basant Lal, who is none else but the brother of the deceased. He has claimed in the following manner:- “Stated that Ram Singh now deceased, was my brother. He was married with Rani d/o Chand Lal about ten years back. Rani was having not good relations with her husband and was having illicit relations with other persons. Due to this, Ram Singh used to remain under tension. He used to maintain a diary. Number of times, I had gone through that diary. Since, Ram Singh used to remain tension due to bad beahaviour of the accused Rani, he committed suicide. I have gone through the hand-writing of Ex.P-1. All the entries in this diary are in the hand-writing of Ram Singh. I got this diary from the almirah of my brother Ram Singh. Letters (some are love letters) Ex.P-12 to Ex.P-18 were also in this diary, when I got it from the almirah of my brother Ram Singh and were written by accused Rani. The photos Exs.P2 to P7 are of the accused Rani, which I had got them from this diary, Ex.P1. I had shown these papers, photos etc. to the police but no action was taken despite the fact that I met the Superintendent of Police, Rewari, in this regard. I therefore vide my application Ex.P1 reported the matter to my Commanding Officer at Madras”. 21. Meaning thereby, even PW9 did not reiterate the contents of his complaint(Ex.PI), which formed the basis of FIR(Ex.PI/1), while appearing as PW9 in the court. 22. The last to note is the testimony of PW10-ASI Vijay Singh, Crl.Appeal No.841-SB of 1998 7 who deposed that on receipt of complaint-Ex.PI(undated) through his senior officer, he recorded the formal FIR(Ex.PI/1). On 07.09.1996, he inspected the spot and prepared the rough site plan(Ex.PJ) with its correct marginal notes. On 22.09.1996, accused Rani, who was on anticipatory bail, joined the investigation and was formally arrested. On 10.10.1996, he took into possession diary(Ex.P1), photographs(Exs.P2 to P8) vide recovery memo (Ex.PG) and also recorded the statements of the witnesses. He also arrested accused Bhawani on 22.10.1996. According to PW10, after completion of the investigation, Inspector/SHO Sat Pal prepared the police report under Section 173 Cr.P.C. and he identified his signatures on it. This is the entire evidence brought on record by the prosecution. 23. As is evident from the record that the appellants were mainly charge-sheeted for the commission of offence punishable under Section 306 IPC, which postulates that 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. Section 107 IPC posits that 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. 24. A co-joint reading of these provisions would reveal that in order to invoke the penal provisions of Section 306 IPC, not only that the prosecution was required to prove that a person had committed suicide, but it was also required to prove that abetting and instigation by the accused was the immediate and eminent reasons of such suicide. First part that Ram Singh committed suicide, is admitted by both the sides. 25. Such, thus, being the legal position and state of evidence on record, now the core question that arises for determination is whether the prosecution has proved all the essential ingredients of the indicated crime by producing reliable evidence on record against the appellants or not? 26. Having regard to the rival contentions of the learned counsel for the parties, to me, as the evidence brought on record by the prosecution falls short, as is required to prove a criminal charge of abetment to commit Crl.Appeal No.841-SB of 1998 8 suicide against the appellants, therefore, the appeal deserves to be accepted for the reasons mentioned here-in-below. 27. The cardinal fundamental principles of criminal law/jurisprudence, have to be kept in focus, while deciding such criminal cases. Some of these are that the absolute onus is always on the prosecution to prove its case beyond any reasonable doubt. The accused cannot possibly be convicted without any legal substantive evidence as the evidence is essential element in criminal proceedings, notwithstanding the seriousness of the allegations alleged against the accused. The criminal proceedings require strict proof of guilt. It is the evidence, on the basis of which, the decision of a criminal court is based and is the requirement of criminal justice. Otherwise, in the absence of the same, the courts have no option but to record an order of acquittal, howsoever, painful the same may be. 28. The bare perusal of the evidence on record would reveal that the marriage of appellant-Rani was solemnized with Ram Singh some where in the year 1987. One son and one daughter was born out of the said wedlock. He was unable to earn his livelihood in village Pithrawas. He shifted from there, started his business of embroidery and was living with his wife Rani in Shiv Colony, Rewari. PW9-Ram Avtar and Yad Ram are the real brothers of the deceased. Yad Ram used to reside at Rewari, while PW9-Ram Avtar was posted in Navy at Madras at the relevant time. Ram Singh committed suicide on 13.06.1996. PW6-Surji(mother of the deceased) had gone to the house of her elder son, Yad Ram, at Mahendergarh for eye-treatment. It was only on 07.09.1996, the present case was registered against the appellants. 29. Proceeding on these premises, the arguments of learned counsel that the story of the prosecution is highly improbable and the appellants were falsely implicated, have considerable force. It is not a matter of dispute that Ram Singh consumed some poisonous substance on 13.06.1996. He was removed to Civil Hospital, Rewari by his wife appellant-Rani, where he breathed his last. PW7 also reached the hospital. In the wake of medical ruqa/information, PW4-Head Constable Abhey Singh reached the hospital and conducted the inquest proceedings(Ex.PD). According to PW1, the dead body of Ram Singh was identified by Basant Lal, father of the deceased and Lala Ram son of Hoshiar Singh. PW4 while Crl.Appeal No.841-SB of 1998 9 conducting the inquest proceedings, recorded the statements of appellant- Rani, PW7-Basanta son of Bhuru, father of the deceased and Lala Ram son of Hoshiar Singh, wherein appellant-Rani described the manner of incident and stated that her husband committed suicide by consuming some poisonous substance and nobody is to be blamed in this respect. 30. Sequelly, PW4 also recorded and incorporated the statement of PW7-Basanta in inquest report(Ex.PD), wherein he(PW7) maintained that deceased-Ram Singh was his middle son, who was residing with his family members in Shiv Colony, Rewari. He was dealing in the profession of embroidery. On 13.06.1996, he received the information to the effect that his son Ram Singh had consumed some poisonous substance and was admitted in the hospital at Rewari. Having received this information, PW7 along with Lala Ram, Panch son of Hoshiar Singh, reached the General Hospital, Rewari and enquired about the incident. On inquiry, it revealed that his son Ram Singh died after consuming some poisonous substance. He identified his dead body. PW7 in his statement incorporated in the inquest report(Ex.PD) has categorically maintained that his son Ram Singh consumed poisonous substance for some unknown reason and till that date, there was not whisper about any kind of dispute with anybody and nobody is to be blamed for the death of his son. Lala Ram son of Hoshiar Singh also toed the same line as projected by PW7-Basanta in this connection. 31. The matter did not rest there. PW7 admitted in his cross- examination that at the time of death of Ram Singh, his other son PW9 Ram Avtar was posted at Madras. He came to village Pithrawas after 4/5 days of the death of Ram Singh. He stayed there for about 4/5 days. Similarly, PW9 admitted that he was present at his place of posting at Madras at the time of this incident. He came to village Pithrawas after about 4/5 days and stayed there for about one month. 32. Meaning thereby, PW7 and Lala Ram have categorically stated in their statements during the inquest proceedings(Ex.PD) that they made inquiry at their level and nobody was to be blamed for the suicide of Ram Singh. If PW6 and PW7 were aware with regard to the illicit relationship inter se between the accused, much prior to the present incident, then they would have so narrated and the police ought to have incorporated these facts in the statements during the inquest proceedings(Ex.PD). According to Crl.Appeal No.841-SB of 1998 10 PW6 and PW7, appellant-Bhawani used to visit the house of the deceased very often. The illicit relations inter se between the appellants were known to them from the very beginning. They did not raise any accusing finger towards the appellants in this relevant connection. PW6 admitted that appellant-Rani lived with them for about ten days after the incident in village and, thereafter, lived in Rewari in her house. It has come in the evidence that complainant PW9 Ram Avtar came from Madras to village Pithrawas four/five days after the incident and remained there for about one month. Even till then, neither PW6 or PW7, parents of the deceased, nor PW9 complainant Ram Avtar and Yad Ram, brothers of the deceased suspected and did not raise any accusing finger towards the appellants in this relevant behalf. It was only after 2- ¾ months i.e., on 07.09.1996, the present case was registered on the basis of alleged undated complaint filed by PW9 to his Commanding Officer at Madras, particularly when, it remained an unfolded mystery that how and in what manner, the complaint allegedly written by PW9 to his Commanding Officer at Madras, reached the concerned police station, on the basis of which FIR(Ex.PI/1) was recorded against the appellants. Neither PW6, PW7 or any other person disclosed to anybody with regard to the alleged illicit relationship inter se between the appellants, nor anybody previously lodged the FIR against them for the reasons best known to them. No cogent explanation is forthcoming on record in this context. In that eventuality, the possibility of false implication of appellant-Rani in order to deprive her legitimate share in the property of her deceased husband, cannot possibly be ruled out in the obtaining circumstances of the case. 33. The trial Judge, while ignoring these inherent improbabilities and convicting the appellants, mainly relied upon an entry dated 01.01.1995 contained in the diary(Ex.P1) allegedly maintained by one Dr.R.S.Bharti and the photographs of appellant-Rani only. Having analysed the matter deeply, to me, the trial court has fell in legal error in this direction and no implicit reliance can be placed on the entries contained in the diary and the photographs. This evidence appears to be subsequently fabricated and deserves to be outrightly rejected for more than one reasons. At the first instance, the prosecution did not prove that it was Ram Singh deceased, who maintained the diary(Ex.P1). Secondly, it did not legally prove the Crl.Appeal No.841-SB of 1998 11 entries of the diary and the photographs. Neither any hand-writing expert has been examined to prove that the hand-writing contained in diary(Ex.P1) was actually of Ram Singh deceased, nor the negatives of photographs and Photographer has seen the door of the court. Learned State Counsel has utterly failed to explain that in what manner, unproved photographs of Rani alone would indicate the commission of crime by the appellants. The findings recorded by the trial court rebel against the realism and lose their sanctity and credibility. 34. This is not the end of the matter. There are inherent discrepancies with regard to the recovery of diary(Ex.P1) as well. PW7 admitted in his cross-examination that the diary and the photographs were taken out from the box belonging to his son Ram Singh during the course of a search conducted after three/four months from his death and at that time, PW9 was on duty at Madras. He came to village Pithrawas after about one month from the date of recovery of diary and the photographs. While according to PW10, he took into possession diary and the photographs on 10.10.1996 vide recovery memo(Ex.PG), which was attested by Satyavir, Chowkidar. Even the prosecution did not examine Satyavir, Chowkidar to prove the authenticity of recovery of the diary. Moreover, Lala Ram was material witness, who was also not examined in the court. It means, the prosecution has withheld the best possible