IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 202 of 2001. Judgment Reserved On: 3.8.2011. Date of Decision: November 2,2011. _______________________________________________ State of H.P. ….Appellant. Versus. Kaam Raj and others. ….Respondents. Coram: Hon’ble Mr. Justice R.B.Misra, Judge. Hon’ble Mr. Justice Dev Darshan Sud, Judge. Whether approved for reporting1?. Yes. For the appellant: :Mr.R.K.Sharma, Senior Additional Advocate General. For Respondent-1 and 3. :Mr.Anup Chitkara, Advocate. For respondent No.2. :Mr. Chander Shekhar, Advocate. Dev Darshan Sud,J. This appeal has been preferred by the State against the judgment passed by the learned Sessions Judge, Hamirpur, acquitting the respondents for offences under Sections 498-A, 306 read with Section 34 I.P.C. Respondent Whether reporters of the Local papers are allowed to see the judgment.yes. 2 No.1 Kaam Raj is the son of Har Parkash respondent No.2 and respondent No.3 Bimla Devi is the mother of respondent No.1 2. The prosecution case in brief is that Rachna Devi deceased was the daughter of PW1 Braham Dass. Accused respondent No.1 was employed in a factory at Ludhiana as a fitter. He was married to the deceased in the year 1996 according to Hindu rites and customs. The allegation against the respondents was that after the wedding, her mother-in- law Bimla Devi, father-in-law Har Parkash and Kaam Raj used to beat her up and abuse her. Fed up with this behaviour, she went to Ludhiana with her husband accused respondent No.1 in the year 1996 and stayed there for about one month. Whenever she used to visit her parents, she used to complain to her father and mother that her in-laws and husband harassed and subjected her to cruel treatment. As a result, 5/6 months prior to the incident, she had consumed some poisonous medicine but survived. Again in the month of November 1997, her husband took her to Ludhiana where they stayed for about one and half months. Thereafter, she and her husband visited her parents and on the next day, they left for the village of the respondents. Two days thereafter, the in-laws of the deceased met PW1 Braham Dass in his house and informed him that the deceased should stay with him and they would take her back 3 after Lohari, but Rachna Devi refused to do so and went to her in-laws. Respondent No.1 husband wanted to divorce her because he suspected that she was writing love letters to some person and he also started harassing/torturing her. On 13.1.1998 in the evening, he received information by telephone that Rachna Devi had gone to visit her sister Bhagwati Devi (PW2) where she was taken seriously ill. At night he along with up-pradhan Amar Nath rushed to village Ghandoli where he found that in the evening at around 4 p.m., the deceased and accused respondent No.1 Kaam Raj were visiting Bhagwati Devi (PW2). At that time, Rachna was walking unsteadily. Both had taken some water and tea thereafter. He concludes by saying that she was tortured and tormented for the reason that she could not bear any child. 3. On 14.1.1998, PW11 S.H.O. Jai Chand, Police Station, Barsar visited the house of the accused where her dead body was lying. He prepared inquest report Ext.PW11/B and Ext.PW11/C and photographs Ext.P5 to Ext.P-8 taken as a part of the record. He also recorded Ext.PA statement of Braham Dass and this was the basis for registration of the F.I.R. On the evidence on record, the learned Sessions Judge holds that Ext PA was the basis of the entire case in which PW1 Braham Dass stated that the deceased was under the influence of some evil spirit and 4 remained depressed. She was melancholic because she was not bearing any child. He has made general allegations regarding cruel treatment etc. 4. PW2 Bhagwati Devi, the elder sister of the deceased stated that the deceased had been visiting Ludhiana etc. where her husband was working as a Fitter. She went there 3/4 times. She stated that the accused used to beat her up, abuse and maltreat her. She had counseled the deceased that she should not leave the house of her husband. She then says that the deceased told her that her mother-in-law used to say that the deceased could not bear any child and used to beat her up on that count also and for this reason they wanted to get Kaam Raj remarried. On 10.1.1998 Kaam Raj accused respondent No.1 had telephoned and asked PW2 Bhagwati Devi to visit Paplah to meet the deceased. Accordingly she went there and invited them to visit her on Lohari. On 13.1.1998 at around 4 p.m, the deceased came to her house. At that time, she was in the court-yard. When she entered the house, she found her sister dead. Accused Kaam Raj did not allow her to touch Rachna Devi saying that she was in some kind of mental depression. At around 7 p.m., she informed her father regarding Rachana’s death. She states in her cross- examination that she had not actually seen the accused maltreating, taunting or beating her but whenever the 5 deceased Rachna Devi met her she used to go into a state of depression. She states that the poison was administered to the deceased in tea by her mother-in-law. She denied any suggestion that she engaged in any conversation with the deceased or accused respondent No.1 Kaam Raj. 5. PW3 Mansa Devi is a neighbour, who states that there was discord between the accused persons and Rachna Devi. This fact was also disclosed to her by the deceased. PW4 Devki Devi is another neighbour of the accused, who says that whenever Rachna Devi met her she used to weep which she interpreted to mean that she was being beaten and maltreated. 6. PW5 Santosh Kumari is also a neighbour of the accused persons. One day when Rachna had gone to fetch water from the common public tap which was situated near the house of this witness and could be approached only through the court yard of her house, the deceased informed her that she had been beaten up by all the accused. Her fingers were swollen. She used to hear Rachna Devi crying but did not go to the house of the accused to ascertain the reasons as Rachna informed her that in case she intervened or visited their house, she would be subjected to more severe maltreatment. After her death, the accused were ostracized by the villagers. She concludes by saying that the accused did not allow her to talk to her or anybody else. 6 7. PW6 Bagga Ram also states that the deceased was maltreated and beaten up and states that he had also heard her crying “Bachao Bachao” (save me save me). He did not go to rescue her in the house of the accused for the reason that Bimla Devi Respondent No.3 used to say that it is a personal matter. PW8 Dr. Sushil Kumar conducted the autopsy of Rachna vide his report Ext.PW8/B. His conclusion was that Rachna had died by consuming Aluminum Phosphate poison. This opinion is based on the report Ext.PW8/C of the Chemical Examiner. In his cross- examination, he says that Aluminum Phosphate cannot be administered to a person deceitfully and forcibly because it gives an obnoxious and pungent smell. 8. PW9 Suresh Kumar brother of the deceased states that he was serving in the Indian Army in 1998 and after the marriage of her sister, the deceased had told him that father-in-law, mother-in-law, husband, devar and nanad (sister-in-law) Anju Devi, harassed her. He was informed about this fact when he had come on annual leave in the month of September and October, 1998. He says that adequate/proper food was not served to her. She was not given enough food and left over was served to her when she was addressed as a “bitch”. He also states that she was beaten up by all the accused persons. He had counseled the deceased to be patient as everything would be alright after 7 marriage. Letter Ext.P-2 was addressed to him by the deceased one day before her death. He says that this letter was received by him on 22.1.1998 for the reason that he was posted in a remote area and he had come home as he was informed about the death of his sister. In his cross- examination he states that he had reached at home on 20th January, 1998 and stayed there for a few days. 9. PW10 Rajesh Kumar is also brother of the deceased serving in the Indian Navy and posted at Goa. He had visited his home in the last week of December, 1997. At that time, he had been informed by the deceased that she was being maltreated; she was not given enough to eat, soap either for washing clothes or bathing. She also told that her in-laws gave her washing soap for bathing. In September, 1997, he received letter Ext.P1 which was contained in envelope Ext.P4. She also informed him that the accused persons were asking her to bring dowry. He also says that he received a telegram Ext.P3. In October, 1997 he had gone to the house of the accused along with Prem Dutt husband of his elder sister. At that time Rachna was crying. The accused had told him that she used to weep because she was emotional. 10. In their statements under Section 313 Cr.P.C. the accused have denied any involvement in the offence and have stated that the case has been registered against them 8 on account of sentiment and not because of any positive evidence on the record. This is the totality of the evidence produced on the record. 11. The learned trial Court, on the assessment of the evidence on record says that the evidence does not prove consistent treatment of cruelty meted out to the deceased and doubts the genuineness of the letters which were addressed to PW9 Suresh Kumar and PW10 Rajesh Kumar brothers of the deceased. 12. Learned Senior Additional Advocate General urges that the learned trial Court was wrong in not considering the case of the prosecution which had otherwise proved the allegations against the accused. It is urged that it was established on the record of the case through the evidence of the father and brothers of the deceased that the deceased was subjected to cruelty/maltreatment which forced her to end her life. In particular, learned senior Additional Advocate General emphasizes letter Ext.P-1 dated 12.9.1997 which according to him contains vivid details of the kind of cruel treatment to which she was being subjected . In the relevant portion of the letter (Ext.P1), she writes: “…………….Agay samachar ish parkar say hai ki apney toh chhoti behan ko bhula hi diya hai. Mugar behnay nahi bhula sakti. Baki maay theek thak say hoo. 16th August ko aa gai hoo ji. Agay samachar yah hai ki mainay aaj tak apko bataya nahi. Parantu abb apko baata rahi hoo ki mairay sash sasur, dever or nanday mujhay daaj kay leeya tanay daay rahi hai. 9 Kahati hai ki phalanay ki bahoo ki shadi maay fridge wa rangeen television bhee aaya hai wa Gas bhee. Prantu apkay bhaiyoo nay nahi diya hai. Unko keha dena ki agaar nahi layagi toh mujhay kishi deen jaan say hath dhonay paragay wa apkay bhai achhi achhi nokari par hai wo jab bhee atay hai toh apko dush rupay dekar jatay hai. Ishleeay bhai ji maay tang aa kar yeh sab batay apko leekh rahi hoo. Aisha na kabhi ho ki apko apnee behan say sada kay leeya hath dhonay paray. Jaisha aap achha samjhatay hai waisha karay. Wa jab say mainay ish ghar maay pair rakha hai taab say unhonay nay pait bhar khana nahi diya hai. Wa jarurat say jayada kaam letay hai wa Anju Nand kahati hai ki kutti aa gai. Usko tukra daloo. Kripya inn batoo ka gusha maat manay. Jaisha aap achha samjhatay hai waisha karay. Maay bhee kaphi mazboor hokar apko likh rahi hoo. Aisay sashural Bhagwan na karay kishi ko meelay. Wa Dever bhee mujhay buree negha say dekhtay hai. Apkay Jeeja ji Sash Sasur kay kehnay par chaltay hai wa kehtay hai ki aap beshak apney bhaioo ko bula loo. Hum kishi say bhee nahi dartay hai………….” Translation: Further news is that you have forgotten your younger sister but your sister cannot forget you. Otherwise, I am alright. I returned on 16th August. Further that I have not told you something till date but I am telling you that my mother-in-law, father-in-law, Dever ( brother-in-law) and sister-in-laws taunt me for bringing inadequate dowry. They say that in so and so marriage fridge and colour Television etc. were given and gas was also one of the items. But your brothers have not given these articles. Tell them that if they do not bring these items then I will have to pay for it with my life and your brothers are working on good posts but whenever they come, they just give you ten rupees and go away. That is why dear brother I am telling this to you under extreme conditions of distress. Please do whatever you think is the right thing to do. I hope that time does not come when 10 you will have to lose a sister. Do whatever you think is the correct thing. From the time when I have stepped into his house they have not given me enough food to eat and make me perform hard work and over work me and Anju sister-in- law says that the bitch has come throw some left over to her. Please do not feel angry. Please do what ever you think is appropriate. I have written to you after my patience has been exhausted. I pray to God that nobody should get in-laws like this. My brother-in-law also casts an evil eye on me. Your brother-in-law (Jeeja ji) is acting at the behest of my father- in-law and mother-in-law and say do whatever you like call your brothers if you want, we are not afraid of anybody.......”. 13. This letter dated 12.9.1997 was sent by an ordinary post envelope (Ext.P-4) has been addressed to PW10 Rajesh Kumar brother of the deceased, who was posted in INAS Hansa at Goa. The second communication on the record is Ext.P2 dated 12.1.1998 which was addressed to PW9 Suresh Kumar. We again reproduced the words of this letter. “Agay samchar ish parkar say hai ki maay Ludhiana say aa gai hoo wa mujhay etna tang kar rakha hai ki kaya bataoo. Mujhay shash sasur, apkay jeeja ji, dever wa nanday Anju wa Meena sabnay apkay patora Ram Krishan kay sath milkar prgramme racha hai mujhay jaan say marnay ka. Pata nahi ki kish time par mujhay khatam ker dengay. Aap kripya jitnee jaldi ho sakay humaray ghar anay ko koshish karay wa mujhay bachai.Aik bar pahlay bhi sash nay jabardasti mujhay khanay maay dawai khela dee thee wa bach gai thee. Mayy bahoot dukhi hoo chuki hoo. Raat deen kaam karwatay 11 hai khanay ka naam tak nahi letay hai. Sashur wa dever janbujhakar mujha ko buri nigha say dekhatay hai………..”. “Translation: Further I informed you that I have returned from Ludhiana and I have been troubled and tormented to such an extent which I cannot tell you. My father-in-law, mother-in-law, your brother-in-law (my husband), dever and sister-in-laws Anju and Meena and Ram Krishan elder brother of my father-in-law hatched a plan to kill me. I do not know when I will be killed by these people. Please come home as soon as possible and save me. On a previous occasion also my mother-in-law had mixed some poison substance in my food but I was saved. I am very unhappy and distressed. They make me work day and night and do not even ask me for food. Father-in-law and Dever cast evil eye on me……” 14. Ext.P3 is the telegram which has been addressed to PW10 Rajesh Kumar, who at that time posted at Kochi. This telegram has been sent by PW1 Braham Dass on 24.12.1997 saying: “come home very very soon” 15. Learned Senior Additional Advocate General submits that these letters themselves constitute proof of the very foundation of the cruel treatment meted out to the deceased. In letter Ext.P2, she also says that she had been subjected to such intense cruelty that the mother-in-law made an attempt to kill her by administering poison in her food. The reasons for rejection of these letters are not clear on the reasoning of the learned Sessions Judge and in any event rejection cannot be accepted. He submits that these letters and especially the last letter (Ext.P2) addressed to PW9 Suresh Kumar could also be treated as dying 12 declaration and the respondents prosecuted for offences under Section 498-A. 16. We have heard learned counsel for parties and have gone through the record. 17. Sh.Anup Chitkara, learned counsel appearing for the respondents urges that there is no gross perversity in the conclusion arrived at by the trial Court, this court should and ought not to interfere. He relies upon the decision of the Supreme Court in Vijai Singh Vs. State of U.P., (2005) 12 SCC 506. The Court holds: “4 Turning now to the appeals against acquittal, having perused the reasoning of the High Court, we do not find that the ground which weighed with the High Court in acquitting accused Ashok Kumar and Vinod Kumar was perverse in any manner and it is well settled that unless the judgment of acquittal is found to be perverse, the appellate Court would not interfere with the same.” (P.508) 18. He submits that this very principle is established and needs no reiteration. In Kallu alias Masih and others Vs. State of M.P. (2006) 10 SCC 313, the Court has again reiterated this principle holding: “8. While deciding an appeal against acquittal, the power of the appellate Court is no less than the power exercised while hearing appeals against conviction. In both types of appeals, the power exists to review the entire evidence. However, one significant difference is that an order of acquittal will not be interfered with, by an appellate court, where the judgment of the trial court is based on evidence and the view taken is reasonable and plausible. It will not reverse the decision of the trial court merely because a 13 different view is possible. The appellate court will also bear in mind that there is a presumption of innocence in favour of the accused and the accused is entitled to get the benefit of any doubt. Further, if it decides to interfere, it should assign reasons for differing with the decision of the trial court.” (P.317&318) 19. Learned counsel submits that if two views are possible on the evidence on record, the one favouring the accused should be adopted. In K.Prakashan Vs. P.K.Surenderan, (2008) 1 SCC 258, the Supreme Court held: “22. It is now trite that if two views are possible, the appellate court shall not reverse a judgment of acquittal only because another view is possible to be taken. The appellate Court’s jurisdiction to interfere is limited. (See M.S. Narayana Menon and Mohadeo Laxman Sarane V. State of Maharashtra, (2007) 12 SCC 705). The High Court furthermore has not met the reasons of the learned trial Judge. It proceeded on the premise that the appellant had not been able to discharge his burden of proof in terms of Section 139 of the Act without posing unto itself a further question as to how the said burden of proof can be discharged. It furthermore did not take into consideration the legal principle that the standard of proof upon a prosecution and upon an accused is different.” (P.267) 20. Learned counsel also submits that in an appeal from acquittal, the High Court has full powers to re- appreciate the evidence and there is no limitation. However, the Court is bound and circumscribed by the established principles of criminal jurisprudence. He relies upon the decision of the Supreme Court in Sangappa and others Vs. State of Karnataka, AIR 2010 SC 977. The Court holds: 14 “ 9. We must express our reservation for the manner in which the High Court disposed of the appeal under Section 378 (1) and (3) of Code of Criminal Procedure. It is true that in an appeal from acquittal the High Court has full power to re-appreciate and re-assess the entire evidence upon which the order of acquittal was founded and then to come to its own conclusion. There is no limitation placed on that power of the High Court. The Code makes no difference in the power of the appellate court, between appeal filed by the State or by other person but the appellate court would not be justified merely because it, feels that a different view should be taken for reasons which are not so strong. This Court repeatedly held that the High Court in exercising the power conferred by the Code and before reaching its conclusion upon facts, it shall give always proper weight and consideration to such matters as (1) the view 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 they have been acquitted at trial; (3) the right of the accused to the benefit of any doubt.” (Pp.978 &979) 21. Learned counsel submits that mens rea under Section 306 I.P.C. is required to be established in unequivocal terms before any conviction can follow. He relies upon the decision in Gangula Mohan Reddy V. State of Andhra Pradesh, AIR 2010 SC 327, the Court holds: “20 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. 21. The intention of the Legislature and the ratio of the cases decided by this Court is clear that in order to convict a 15 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 opinion and this act must have been intended to push the deceased into such a position that he committed suicide.” (P.330) 22. These are the established principles. We need not to re-affirm and reiterate them. Learned counsel also submits that the facts urged by the prosecution are indeed bizarre. The deceased had actually walked up to the house of her sister PW2 Bhagwati Devi where she died and who is the only eye witness. Inquest report Ext.PW11/B has not been prepared in the presence of PW1 Braham Dass. In the totality of these circumstances, the guilt of the accused has to be determined. 23. Learned counsel appearing for the respondents urges that even if the evidence on record is accepted that is to say that the act of cruelty as stated in the two letters, it cannot form the basis of conviction. He relies upon the decision of the Supreme Court in Rajbabu & another Vs. State of M.P., AIR 2008 SC 3212. The Court in that case, in the entirety of the evidence on record considered one vital piece of evidence i.e. latest letters written by the deceased mentioning therein that the attitude of the family was not good towards her. She was not treated well. The Court did not consider this to be a safe piece of evidence for convicting 16 the accused. Learned counsel then submits that abetment to commit suicide involves a mental process of instigating a person in doing a particular act. He relies upon the decision in Sohan Raj Sharma Vs. State of Haryana, 2008 Cri.L.J. 2569, holding: “10……………………The word “instigate” literally means to provoke, incite, urge on