IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. Cr. Appeal No. 410 of 2003 Judgment reserved on : 20.12.2010 Date of decision : 7.1.2011 ____________________________________________________ Piar Chand …Appellant. Versus State of Himachal Pradesh …Respondent. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting ? No For the appellant : Mr. V.S. Rathore, Advocate. For the Respondent : Ms. Ruma Kaushik, Addl. Advocate General with Mr. J.S. Rana , Assistant Advocate General. Kuldip Singh, J The appellant has come in appeal against judgment of conviction and sentence under Sections 498-A, 306 IPC passed by learned Sessions Judge, Kangra at Dharamshala in Sessions Case No.33-K/VII/2002. The appellant has been sentenced to undergo rigorous imprisonment under Section 498-A for two years and to pay a fine of `2000/-. He has been sentenced under Section 306 IPC to undergo imprisonment for five years and to pay a fine of `2000/-. In default of payment of fine on both counts the convict shall suffer imprisonment for six months each. The sentences have been ordered to run concurrently. __________ ¹ Whether reporters of Local Papers may be allowed to see the Judgment ?Yes 2. The prosecution case in brief is that Nirmla Devi alias Nimo was married on 25.11.2001 with Ramesh Chand son of appellant Piar Chand and Smt. Bhutto Devi. Sushma Devi is the sister of Ramesh Chand. Nirmla Devi was treated with cruelty for not fulfilling the demand of dowry. Nirmla Devi fed up with such demands and cruelty at the hands of her husband Ramesh Chand and his relations hanged herself in matrimonial home on 14.6.2002. 3. The further case of the prosecution is that on receiving the information of commission of suicide by Nirmla Devi, PW-6 Gurcharan Singh Pardhan of Gram Panchayat visited the matrimonial home of the deceased and telephonically informed the police. There upon rapat Ex.PW-9/A dated 14.6.2002 was recorded in the daily diary. PW-11 Ms.Sireshta Devi, Sub Inspector went to the spot, PW-2 Hari Chand father of the deceased on receiving the information also reached the spot. PW-11 recorded the statement Ex.PW-2/A of PW-2 Hari Chand and there upon FIR Ex.PW-10/A came to be registered at Police Station, Kangra by PW-10 Sub Inspector Mohinder Singh. Ex.PW-7 rope, Ex.PW2/B suicide note written by deceased were taken into possession. Register Ex.PW- 2/C maintained by the deceased was also taken into possession. Register Ex.PW-2/C, suicide note Ex.PW-2/B were sent for examination. PW-7 Visheshwar Sharma vide report Ex.PW-7/B has opined the contents of the suicide note Ex.PW-2/B are in the hand of a person who had written in register Ex.PW-2/C. The photographs Ex.PW-11/1 to Ex.PW-11/9 were taken on the spot alongwith negatives Ex.PW-11/10 to Ex.PW-11/18. 4. PW-2 Hari Chand after the death of Nirmla Devi had submitted an application Ex.PW-6/D to PW-6 Gurcharan Singh, Pardhan Gram Panchayat for return of dowry articles. The Pardhan advised Hari Chand that till the release of the accused, the dowry articles may not be taken and therefore, the dowry articles were kept in an almirah. Key of the almirah was entrusted to Pardhan but after release of the accused from the custody, they refused to part with the dowry articles to the father of the deceased. 5. According to prosecution, it has come in the investigation that deceased had passed draughtsman course after 10 + 2 examination. She was subjected to cruelty on account of demand of dowry by her husband, father-in-law, mother-in-law and sister-in-law and therefore, she had committed suicide within seven months of her marriage. On completion of investigation challan was presented against the appellant and three others under Sections 498-A, 304-B IPC. The accused were charged under Sections 498-A, 304-B and 34 IPC. They denied the charge and claimed trial. The prosecution has examined 13 prosecution witnesses. The accused were examined under Section 313 Cr.P.C., they denied the prosecution case but led no evidence in defence. On conclusion of trial, the learned Sessions Judge acquitted Ramesh Chand husband, Sireshta Devi sister-in-law and Smt. Bhutto Devi mother-in-law of the deceased but convicted and sentenced the appellant father-in-law of the deceased as noticed above. Hence, this appeal. 6 I have heard learned counsel for the parties and have also gone through the record. The learned counsel for the appellant has submitted that the learned Sessions Judge has erred in convicting and sentencing the appellant under Sections 498-A, 306 IPC. It has been submitted that prosecution has failed to bring home the charge against the appellant. The suicide note Ex.PW-2/B, read with statements of prosecution witnesses, is not sufficient to convict the appellant under Sections 498-A, 306 IPC. It has been submitted that prosecution has miserably failed to prove demand of dowry or cruelty at the hands of appellant to the deceased. It appears deceased was a sensitive woman and for reasons best known to her, she took the extreme step of ending her life by committing suicide and for that appellant cannot be held liable. The learned Sessions Judge has not properly appreciated the facts and law in convicting and sentencing the appellant. The learned Addl. Advocate General has supported the impugned judgment and has submitted that occurrence took place within seven months of the marriage. The learned Sessions Judge has properly appreciated the material on record and has rightly convicted and sentenced the appellant. The learned Addl. Advocate General has prayed for dismissal of the appeal. 7. In order to appreciate the submissions made by leaned counsel for the parties, it is necessary to refer evidence which has come on record. PW-1 Dr. D.P. Swami, Assistant Professor, Forensic Medicine has stated that on 15.6.2002 he alongwith Dr.Sumanju Dhiman conducted post mortem of the dead body of Nirmla alias Nimo, aged 26 years. There was alleged history of suicide by hanging on 14.6.2002 at 1.30 p.m. approximately. He has proved postmortem report Ex.PW-1/C and according to the opinion of the doctor the lady died of asphyxia due to ante mortem hanging. The time elapsed between injury and death was one to five minutes and between death and post mortem, it was 12 to 24 hours. 8. PW-2 Hari Chand has stated that his 3rd daughter Nirmla was married to Ramesh Chand on 25.11.2001. He had given dowry articles at the time of marriage to his daughter as per his capacity. The deceased was residing with husband, father-in-law and mother-in- law jointly. The deceased upto one month of marriage did not tell anything to him. But thereafter whenever she used to come, kept silent and mum. On his asking she told that she was being pressurised by husband for scooter and mobile phone. The father-in-law and husband used to taunt her for bringing less dowry. Sushma sister-in-law and mother-in-law of the deceased used to abuse regularly. He prevailed upon her to remain in house and assured that slowly and gradually he would give certain items to her in laws. On 3.6.2002 deceased lastly stayed in his house for six days. During this period, she remained silent and sleeping. On his asking she told that her father-in-law asked her to come back alongwith a buffalo. The father-in-law also told her that Ramesh Chand was not giving him any money to run the house so she should not come back to the house. It was decided to send the deceased to her in laws house on 9th June alongwith Laxmi sister of the deceased. 9. He moved an application to the Pardhan Gram Panchayat, intimating therein the harassment of his daughter by her in laws. On 14.6.2002, he received information from the brother-in-law of the deceased that Nirmla had committed suicide. Laxmi had returned on 10th June and told that Piar Chand father-in-law of Nirmla had asked Nirmla to go back as he had nothing to feed her. He informed the police on telephone, his statement Ex.PW-2/A was recorded by the police. The deceased had studied upto plus two and had undergone draughtsman training at Dharamshala. He has stated that letter Ex.PW-2/B is in the hand of his daughter Nirmla and register Ex.PW-2./C is also in the hand of his daughter Nirmla. In cross- examination he has stated that after marriage accused directly did not demand any dowry articles from him. At the time of marriage no dowry was demanded by the accused. He retired as Sub Inspector from police. His one son is head constable and posted at Kangra Police Station. At the time of death of his daughter his son was posted at Police Post Gagal, Police Station, Kangra. When his statement Ex.PW- 2/A was recorded by police, he was upset and puzzled. He denied that Nirmla had told him about relations of her husband with his landlady. He has denied that Nirmla had committed suicide due to suspicion of her husband’s relation with landlady. 10. PW-3 Laxmi Devi has stated that Nirmla Devi was her elder sister. On 16th May she went to leave her matrimonial house. On 17th May father-in-law of Nirmla Devi told her that ration articles were brought by him with his own money as Ramesh did not contribute any money for purchasing ration, so meals would not be provided to them. Lastly Nirmla came to their house on 3.6.2002 and returned to matrimonial home on 9th June. She accompanied her to leave her at matrimonial home. On 10th June she returned to her house. Nirmla was maintaining silence. On asking she told that she was being treated with cruelty and her father-in-law demanded mobile and scooter from her parents. In cross-examination she has stated that Nirmla Devi told her that her husband has been agreeing to all suggestions of his landlady. This was apprised by Nirmla in June 2002. She had shown her ignorance that due to suspicion Nirmla was disturbed. 11. PW-4 Sandeep Kumar is the brother of the deceased. He has stated that on 3.6.2002, he had come from Ludhiana to his native place and at that time Nirmla was also there. She told that she does not want to go to matrimonial home as the accused had been harassing her due to demand of dowry. The father-in-law of Nirmla had demanded a buffalo. She told that her husband has not given anything to her and lived more with his landlady. In cross-examination he has stated that Nirmla had expressed her suspicions qua these movements of her husband and his landlady. 12. PW-5 Dalip Kumar is the brother of the deceased and witness to inquest papers Ex.PW-1/A and Ex.PW-1/B. He identified the hand writing of deceased in letter Ex.PW-2/B and register Ex.PW-2/C. In cross-examination he has stated that at the time of marriage accused did not demand any dowry article. After the marriage, accused directly never demanded any dowry item from him but such items were demanded through Nirmla. He has shown his ignorance that Nirmla had been suspecting Ramesh and his landlady. He has shown his ignorance that Nirmla was upset due to suspected relations of Ramesh with landlady. 13. PW-6 Gurcharan Singh, Pardhan of Gram Panchayat, Jassai is a witness to rope Ex.P-7, letter Ex.PW2/B, register Ex.PW-2/C and application Ex.PW-6/D which was submitted by the father of Nirmla to him. He has proved list of articles Ex.PW-6/E. In cross-examination he has stated that articles mentioned in Ex.PW-6/E are still inside the almirah. He had not kept any record in Panchayat proceedings, qua application Ex.PW-6/D. PW-7 Visheswar Sharma, Scientific Officer, Documents and Photo Division has proved the report Ex.PW-7/A. He has stated that he has examined letter Ex.PW-2/B, Register Ex.PW-2/C and letter Ex.PW-2/C which were written by one and same person. 14. PW-8 Dharam Chand is a formal witness. He has stated that accused do not have telephone facility and Nirmla used to come to his house to attend telephone from her parental side. In cross- examination he has stated that on the death of Nirmla son of Piar Chand came to his house and intimated father of deceased. PW-9 constable Rakesh Kumar has proved report No.22 dated 14.6.2002 Ex.PW-9/A. PW-10 SI Mohinder Singh has stated that at about 5.15 p.m. he had received telephonic information from Pardhan Gram Panchayat, Jassai that Nimo Devi had committed suicide. He entered the report Ex.PW-9/A and deputed, SI Sireshta to visit the spot. Rukka Ex.PW-2/A was received at 9.50 through constable Tarsem Lal, on the basis of which he entered FIR Ex.PW10/A, the endorsement on rukka is Ex.PW-10/B. 15. PW-11, S.I. Sireshta has stated that she recorded the statement Ex.PW-2/A of Hari Chand. She has proved the photographs Ex.PW11/1 to 9 and its negatives Ex.PW-11/10 to Ex.PW-11/18. On checking of the room, below pillow of the bed, suicide note Ex.PW-2/B was found and it was taken into possession. In cross-examination she has admitted that the son of Hari Chand is employed in their department and at that time he was not posted at Kangra but he was posted at police post, Gagal which falls under police station, Kangra. PW-12 Dy. S.P. O.P. Jamwal, has stated that he searched the residential room of the accused and took into possession death note Ex.PW-2/B and register Ex.PW-2/C. In cross-examination he has stated that he does not remember that it had come in his investigation that deceased had been suspecting her husband for having some relations with landlady at Birta. He did not verify these aspects. PW- 13 Inspector Dinesh Kumar has stated that after receipt of report of hand writing expert Ex.PW-7/A, he prepared supplementary challan and presented in the Court. The appellant in his statement under Section 313 Cr.P.C. denied the prosecution case and has stated that he is innocent. 16. Ex.PW-2/A is the statement of Hari Chand under Section 154 Cr.P.C. and on that basis FIR Ex.PW-10/A has been registered. In Ex.PW-2/A no specific particular instance regarding demand of dowry and cruelty of appellant towards deceased has been stated. In Ex.PW-2/A it has been stated that after 3.6.2002 he sent deceased with his daughter Laxmi Devi to her matrimonial home, Piar Chand told her that he had no means to feed her, better she should go back to her parents house. At the time of meals during evening the father-in- law of the deceased asked the deceased to remain standing like a servant so that she was not called again and again. 17. Ex.PW-2/B is the suicide note and its near English translation is as follows:- “We are five family members, mother-in-law, father- in-law, brother-in-law, myself and my husband. There is one sister-in-law who is married. My mother-in-law and husband are very good, till today they have said nothing to me. But my father-in-law treats me like servant. A few days ago my father-in-law rebuked me badly and also quarreled with me. My father-in-law is in the habit of telling lies. I was told that Ramesh does not contribute anything in the house. He told me that he had not taken the responsibility to bear my expenses. He told me to leave the place nor I should do any work. I was told to go to my parents house just now. I was also told not to cook food and from today I was told not to cook any food, but I do not want to live in my parents house. I want to live in my matrimonial home. But the behaviour of father-in-law has touched my heart very badly and I am not feeling well. I do not want to live here nor I want to work willingly. I am mentally disturbed due to the behaviour of my father-in- law. I have decided to finish my life. I am deeply perturbed with the behaviour of my father-in-law. I disclosed everything to my husband when he came. He said that father-in-law speaks without any basis. He had been contributing in the house but father is telling lies. I do not want to live in these circumstances nor I want to live in my parents house. I am fed up with the conduct of my father- in-law and I have finished my life. My father-in-law used to illtreat me. After my death don’t trouble my brother-in- law, husband and mother-in-law. All three of them are good. But thoroughly interrogate my father-in- law regarding his behaviour towards me and I am deeply fed up with the conduct of my father-in-law. After my death don’t trouble my husband, brother-in-law, but thoroughly question my father-in-law”. 18. The Supreme Court in Gangula Mohan Reddy vs. State of Andhra Pradesh 2010(1) Criminal Court Cases 461 (SC) has held as follows:- 19. “This court in Chitesh Kumar Chopra v. State (Govt. of NCT of Delhi) 2009(4) Criminal Court Cases 508 (S.C.) :2009 (11) SCALE 24 had an occasion to deal with this aspect of abetment. The court dealt with the dictionary meaning of the word “instigation” and “goading”. The court opined that there should be intention to provoke, incite or encourage the point of an act by the latter. Each person’s suicidability pattern is different from the others. Each person has his own idea of self esteem and self respect. Therefore, it is impossible to lay down any straight-jacket formula in dealing with such cases. Each cases has to be decided on the basis of its own facts and circumstances. 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 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 this act must have been intended to push the deceased into such a position that he committed suicide.” 19. In Madan Mohan Singh v. State of Gujrat and another (2010) 8 SCC 628, the suicide note noticed in paragraph 7 of the report is as follows:- “I am going to commit suicide due to his functioning style. Alone M.M. Singh, DET Microwave Project is responsible for my death. I pray humbly to the officers of the Department that you should not cooperate of human being to defend M.M. Singh. M.M. Singh has acted in breach of discipline disregarding the norms of discipline. I humbly request the enquiry officer that my wife and son may not be harassed. My life has been ruined by M.M. Singh.” The Supreme Court has held as follows:- 11. “In spite of our best efforts and microscopic examination of the suicide note and the FIR. All that we find is that the suicide note is a rhetoric document in the nature of a departmental complaint. It also suggests some mental imbalance on the part of the deceased which he himself describes as depression. In the so-called suicide note, it cannot be said that the accused ever intended that the driver under him should commit suicide or should end his life and did anything in that behalf. Even if it is accepted that the accused changed the duty of the driver or that the accused asked him not to take the keys of the car and to keep the keys of the car in the office itself, it does not mean that the accused intended or knew that the driver should commit suicide because of this. 12. In order to bring out an offence under Section 306 IPC specific abetment as contemplated by Section 107 IPC on the part of the accused with an intention to bring about the suicide of the person concerned as a result of that abetment is required. The intention of the accused to aid or to instigate or to abet the deceased to commit suicide is a must for this particular offence under Section 306 IPC. We are of the clear opinion that there is no question of there being any material for offence under Section 306 IPC either in the FIR or in the so-called suicide note. The Supreme Court has further held that the suicide note and the FIR do not impress at all. They cannot be depicted as expressing anything intentional on a part of the accused that the deceased might commit suicide.” 20. The Supreme Court in Durga Prasad and another vs. State of Madhya Pradesh (2010) 9 SCC 73 where the accused was convicted under Section 498-A and under Section 304-B IPC has held as follows:- “Having carefully considered the submissions made on behalf of the respective parties, we are inclined to allow the benefit of doubt to the appellants having particular regard to the fact that except for certain bald statements made by PWs 1 and 3 alleging that the victim had been subjected to cruelty and harassment prior to her death, there is no other evidence to prove that the victim committed suicide on account of cruelty and harassment to which she was subjected just prior to her death, which, in fact, are the ingredients of the evidence to be led in respect of Section 113-B of the Evidence Act, 1872, in order to bring home the guilt against an accused under Section 304-B IPC.” 21. The learned Sessions Judge has convicted the appellant under Section 498-A and Section 306 IPC with the aid of Section 113-A of the Indian Evidence Act. The Section 113-A of the Indian Evidence Act provides presumption as to abetment of suicide by a married woman. Basic ingredient of Section 498-A is cruelty. In explanation (a) to Section 498-A cruelty means any wilful conduct which is of such a nature as is likely to drive the woman to commit suicide. The explanation (b) further provides cruelty means harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property etc. Section 306 IPC deals with punishment for abetment of suicide. 22. The learned Sessions Judge has recorded a finding that it cannot be said that Nirmla was treated with cruelty on account of dowry demand. Thus, it can be safely inferred that in the present case cruelty as explained in clause (b) of Section 498-A IPC has not been established. Now the question is whether for the purposes of Section 498-A, clause (a) of Section 498-A is attracted in the present case. 23. On the basis of prosecution story four persons including appellant were prosecuted. All of them except appellant have been acquitted whereas the appellant has been convicted under Section 498-A and under Section 306 IPC. The first version came from the side of the PW-2 Hari Chand father of the deceased in the form of his statement Ex.PW-2/A under Section 154 Cr.P.C. The only allegation against the appellant in Ex.PW-2/A is that deceased had told PW-2 that his father-in-law and husband told her that less dowry was given, they demanded money for the scooter. He has also stated that his younger daughter told that appellant told the deceased to go her parents house as he could not support her. During evening at the time of meals he asked the deceased to remain standing like a servant and she was not to be called again and again. In Ex.PW-2/A it has not been stated that appellant abetted the suicide of the deceased or he created such situation due to his conduct which compelled the deceased to commit suicide. 24. The perusal of suicide note Ex.PW-2/B also indicates that some general statement has been made by the deceased against her father-in-law. In Ex.PW-2/B it has not been stated that appellant ever told the deceased to commit suicide. The gist of Ex.PW-2/B is that appellant had shown some difficulty in maintaining deceased for want of contribution for running the kitchen by the husband of the deceased. In Ex.PW-2/B no specific instance of abetment to commit suicide by deceased from the