CRA No.526-SB of 2008, CRA No.1854-SB of 2009 and CRA No.1990-SB of 2009 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CRA No.526-SB of 2008 Date of decision : 10.09.2010 Bachittar Bir Singh ...Appellant Versus State of U.T. Chandigarh …Respondent AND CRA No.1854-SB of 2009 State of U.T. Chandigarh ...Appellant Versus Bachittar Bir Singh …Respondent AND CRA No.1990-SB of 2009 State of U.T. Chandigarh ...Appellant Versus Prabhjit and another …Respondent CORAM : HON’BLE MR. JUSTICE JITENDRA CHAUHAN **** Present : Mr. APS Deol, Sr. Advocate, with Mr. ADS Sukhija, Advocate, for the appellant in CRA No.526-SB of 2008. 1 CRA No.526-SB of 2008, CRA No.1854-SB of 2009 and CRA No.1990-SB of 2009 Mr. Sukant Gupta, Advocate, for U.T. Chandigarh-respondent in CRA No.526-SB of 2008 and for U.T. Chandigarh-appellant in CRA Nos.1854-SB and 1990-SB of 2009. **** JITENDRA CHAUHAN, J. (ORAL) 1. This judgment of mine shall dispose of three appeals, namely, CRA No.526-SB of 2008, CRA No.1854-SB of 2009 and CRA No.1990-SB of 2009, as the same have arisen out of the common judgment/order dated 20.02.2008/23.02.2008 (hereinafter as ‘impugned judgment’), passed by the learned Additional Sessions Judge, Chandigarh (hereinafter as ‘trial Court’). However, the facts are being taken from CRA No.526-SB of 2008. 2 CRA No.526-SB of 2008, CRA No.1854-SB of 2009 and CRA No.1990-SB of 2009 2. The accused (herein appellant), Bachitter Bir Singh, has preferred this appeal challenging the impugned judgment whereby he has been convicted for the offence punishable under Section 306 IPC and sentenced to undergo rigorous imprisonment for a period of four years and to pay a fine of Rs.4000/- and in default of payment of fine, to further undergo simple imprisonment for a period of six months. The other co-accused, namely, Prabhjit Kaur @ Matti and Jasbir Kaur, were acquitted by giving them the benefit of doubt. The other two appeals have been filed by the Union Territory, viz., CRA No.1854-SB of 2008 (for enhancement of sentence qua accused-Bachitter Bir Singh) and CRA No.1990-SB of 2000 (against acquittal of co-accused, Prabhjit Kaur @ Matti and Jasbir Kaur). 3. The brief facts of the present case, as set up by the prosecution, find mentioned in paras 2 to 5 of the impugned judgment, which read as thus:- “2. The sequence of events leading to registration of this case and prosecution of accused is that on 2.6.1996, a written complaint was moved by Paramjit Singh s/o late Shri Bhagat Singh r/o Street No.6, House No.28/3, Rampur Road, Haldwani, District Nainital (U.P.) wherein he alleged that they are six brothers and sisters. Out of them he is only brother of five sisters, who all were married. One of his sisters deceased Harvinder Kaur studied up to inter and she was earlier married to one Rajinder Singh in 3 CRA No.526-SB of 2008, CRA No.1854-SB of 2009 and CRA No.1990-SB of 2009 the year 1980 from whom she had one boy. But because of some dispute between both of them, their marriage was dissolved and the boy remained with Rajinder Singh, the earlier husband of Harvinder. 3. He further alleged that in the year 1988, his sister Harvinder Kaur was married to accused, Bachittarbir Singh son of Major Sardar Singh, resident of H.No.3365, Sector 37-D, Chandigarh, with the mediation of his relative Jaswinder Bedi. Bachittarbir Singh was also divorcee. No issue was born to his sister out of this wedlock and because of this reason Harvinder Kaur’s in laws and her sister in law, Jasbir Kaur, used to maltreat and taunt her. Even Jaswinder Singh Bedi, who was mediator, also instigating the other accused persons to expel his sister from the matrimonial house and pay her Rs.500/- per month for her livelihood and he will get married Bachittarbir Singh with some girl. However, due to the intervention of the relatives, they could not expel his sister from her matrimonial house. 4. As per the complaint, in the month of April,1993, Harvinder Kaur gave birth to a son, who was named Jagateshwar Singh alias Mithu. After the birth of son, there was only one thing in the mind of Harvinder’s in- laws that their purpose has been solved and now there is 4 CRA No.526-SB of 2008, CRA No.1854-SB of 2009 and CRA No.1990-SB of 2009 no need of Harvinder Kaur. Therefore still, they were maltreating her on one pretext or the other and they were doing so to compel her to leave the matrimonial home and the other reason was that his sister was not educated than the accused persons and being a poor person he and his family could not fulfill the illegal demands of accused and because of that also they were torturing and maltreating her even physically and mentally on the trivial matters. His sister used to report the matter to him and her parents through telephone regarding their behaviour. 5. With the above back ground, the complaint further alleged that on 01.06.96, at about 8.00 PM., his sister, Gurminder Kaur, who is resident of Delhi told to his uncle through telephone that Jaswinder Singh Bedi had telephonically informed that Harvinder Kaur along with her son, has committed suicide. On this information, he along with his mother, uncle and aunt rushed to General Hospital, Sector 16, Chandigarh, where he identified the dead body of his sister and her son Jageteshwar alias Mithu. He also alleged that his sister has done this because of the torture and maltreatment given by the accused persons.” 4. After completion of the investigation, the accused were charge- sheeted for commission of offence punishable under Section 306 IPC 5 CRA No.526-SB of 2008, CRA No.1854-SB of 2009 and CRA No.1990-SB of 2009 read with Section 120-B of IPC to which they pleaded not guilty and claimed trial. 5. In order to substantiate its case, the prosecution examined as many as 19 witnesses, namely, Dr. Krishan Vij, one of the members of Medical Board, who conducted post mortem on the bodies of deceased, Harvinder Kaur and Jagateshwar Singh, as PW1; Dr. Kuldip Singh as PW2; HC Nand Kishore as PW3; Constable Baljit Singh as PW4; Amanpreet Singh, who is running a Chemist shop adjoining to STD Booth of the appellant, as PW5; Paramjeet Singh, complainant, as PW6; Jaswant Singh, who prepared the site plan, as PW7; Dr. S S Cheema, Medical Officer, as PW8; Inspector M R Kadian as PW9; Dalip Singh Sodhi, the then Post Master, Post Office, New Secretariat, Chandigarh, as PW10; Harjinder Singh as PW11; Manmohan Singh as PW12; Gurvinder Kaur, sister of the deceased-Harvinder Kaur, as PW13; Hardaman Kaur, sister-in-law of deceased, as PW14; Manmohan Kaur, sister of Hardaman Kaur, as PW15; C. Manjit Singh as PW16; A K Honey, the then Assistant Post Master, Post Office, Haldwani, as PW17; Inspector Balhar Singh, second Investigating Officer, as PW18; and SI Tarsem Singh, first Investigating Officer, as PW19. 6. The accused were examined under Section 313, Cr.P.C., while putting them all the incriminating evidence and circumstances in the prosecution case, which they denied and pleaded false implication. In defence, the accused examined Shivinder Kumar, Accountant, Punjab 6 CRA No.526-SB of 2008, CRA No.1854-SB of 2009 and CRA No.1990-SB of 2009 State Co-operative Bank, as DW1; Vasdev Talwar of AIIMS, New Delhi, as DW2; Lt. Col. Terminder Singh (Retd.) as DW3; Dr. Ajit Awasthi as DW4; Dr. R K Upadhya as DW5; Dr. Tarlochan Singh as DW6; Prithvi Pal of Oswal Cancer Treatment and Research Foundation, Ludhiana, as DW7; and Major Saira Bano, Medical Officer, Military Hospital, Patiala, as DW8. 7. After hearing learned counsel for both the parties, the learned trial Court, while acquitting the accused, namely, Prabhjit Kaur @ Matti and Jasbir Kaur, by giving them the benefit of doubt, has convicted and sentenced accused-appellant, Bachitter Bir Singh, as stated above at the outset of this judgment. 8. Aggrieved against the aforesaid judgment of conviction and order of sentence, the accused-appellant has preferred the instant appeal. 9. Learned counsel for the appellant has argued that there is no allegation whatsoever with regard to the demand of dowry in the FIR. Even in the statements of other witnesses recorded under Section 161 Cr.P.C., no such allegation was made. He has further submitted that the appellant as well as Harvinder Kaur @ Kitty, (since deceased), were the divorcees at the time of their marriage in the year 1987 and it was second marriage for both of them. The deceased could not conceive during the first five years of the marriage, however, the couple was blessed with a son subsequently. 7 CRA No.526-SB of 2008, CRA No.1854-SB of 2009 and CRA No.1990-SB of 2009 10. Learned counsel has further submitted that the prosecution case mainly rests upon the testimony of the complainant-Paramjit Singh (PW6), Hardaman Kaur (PW14), Manmohan Kaur (PW15), Harjinder Singh (PW11) and Manmohan Singh, a neighbour of Paramjit Singh at Haldwani (PW12). The evidence of these witnesses stand as disbelieved by the learned trial Court inasmuch as the other co-accused, i.e., sisters of the appellant, are concerned and they have been acquitted, therefore, the same set of evidence cannot be held sufficient to convict the appellant-Bachittar Bir Singh. Furthermore, there are material improvements in the statements of these witnesses. 11. Learned counsel has submitted that there is not even a single specific instance of harassment having meted out to the deceased by her in-laws’ family is given by the prosecution. The case of the prosecution is that the fact of harassment came to light through telephonic calls made by Harvinder Kaur, deceased, from time to time. Two such calls are stated to have been made on 24.5.1996 and 1.6.1996, however, no record/statement of these telephonic calls has been brought on record by the prosecution to prove this fact. There are also material contradictions in the statements of PWs regarding the date (s) and timing(s) of these phone calls. 12. Learned counsel has next argued that there are material improvements in the statements of complainant-Paramjit Singh, PW6 and Manmohan Kaur, PW15. Initially, there was no allegation of demand of dowry from the side of the accused or as to if any such 8 CRA No.526-SB of 2008, CRA No.1854-SB of 2009 and CRA No.1990-SB of 2009 demand was ever made by the complainant. It is purely an after thought introduced with an oblique motive to give a new dimension to the prosecution case. 13. Learned counsel has further argued that the allegations levelled against the accused are vague and that the prosecution story lacks specificity inasmuch as neither any specific incident of alleged harassment has been pointed out by any of the witnesses nor any reason of harassment is given. The deposition of these witnesses clearly shows that they were unaware of the daily life of the deceased and did not have any knowledge of even about the mental ailment of the appellant as well as about the fact that Harvinder Kaur @ Kitty was in fact handling the business affairs and bank transactions of the appellant. 14. Learned counsel has argued that the provisions of Section 306 IPC are not attracted in the facts and circumstances of the present case as there is nothing on record to suggest that there was any instigation or provocation, in any way, which compelled Harvinder Kaur, deceased, to take such an extreme step. Furthermore, there is nothing on record to suggest that the accused had abetted or created such circumstances for the deceased that she was left with no other option except to end her and the life of her son. He has also placed reliance on a judgment delivered by Hon’ble the Supreme Court in Ramesh Kumar V. State of Chhattisgarh, 2001 (4) RCR (Crl.) 537. 9 CRA No.526-SB of 2008, CRA No.1854-SB of 2009 and CRA No.1990-SB of 2009 15. Learned counsel has further argued that in view of the fact that the marriage took place about 9 years prior to the date of occurrence and that no cogent evidence has been lead by the prosecution to show that there was conspiracy amongst the accused over such a long period of time to force the deceased to commit suicide, therefore, case under Section 120-B IPC is not made out against the accused. 16. Learned counsel has contended that the prosecution has relied upon letters, Exs.P21, P23 and P25, in order to show that the deceased was being harassed by the accused. Though these letters stand disbelieved by the learned trial Court, yet a perusal of letters, Ex.P21 and 23 would reveal that the deceased was in a very happy state of mind and there was no sign of any discontentment. As regards letter, Ex.P25, it revealed that there are material contradictions in the statements of the complainant, PW6 and the Investigating Officer (PW18). According to the complainant, he had received a copy of this letter on 2.6.1996 through fax which was handed over to the I.O. whereas the latter denied the receipt of any such fax copy. Moreover, this fax copy has not been placed on record. Learned counsel has vehemently argued that the fact that the deceased was at Haldwani from 2.5.1996 to 9.5.1996, falsifies the claim of Hardaman Kaur, PW14, and Manmohan Singh, PW12, to the effect that the letter, Ex.P25, was received on 3.6.1996. 17. Learned counsel has lastly argued that there is nothing on record to suggest that the deceased was facing any kind of discomfort in her 10 CRA No.526-SB of 2008, CRA No.1854-SB of 2009 and CRA No.1990-SB of 2009 matrimonial home. The only inference which could be drawn in view of the facts and circumstances of the present case is that the deceased was upset over the mental condition of her husband and could not cope with the tremendous pressure on this count, which forced her to take such an extreme step. On the other hand, it is the appellant, who has suffered the most on account of his mental ailment and the trauma of having lost his wife and the only son. 18. On the other hand, learned counsel for the State has argued that the prosecution has been able to prove its case beyond a reasonable doubt. Harvinder Kaur, deceased, committed suicide by hanging herself along with her son and both of them have died an unnatural death. It is further proved on record from the testimony of complainant-Paramjit Singh (PW6), Harjinder Singh (PW11), Manmohan Singh (PW12), Gurvinder Kaur (PW13), Hardaman Kaur (PW14) and Manmohan Kaur (PW15) that the deceased was harassed and maltreated by all the accused, firstly on the ground that she was not able to conceive during the first five years of her marriage with the appellant and secondly, after the birth of a son, there was an intention to get rid of her, and lastly on account of bringing insufficient dowry. 19. I have heard learned counsel for the parties and perused the record. 20. As per the FIR, both, the appellant-Bachitter Bir Singh and the deceased-Harvinder Kaur alias Kitty were already divorcees at the time of their marriage in the year 1987. It is further made out from the 11 CRA No.526-SB of 2008, CRA No.1854-SB of 2009 and CRA No.1990-SB of 2009 perusal of record that the deceased could not conceive during the first five years of marriage and on that account, Jaswinder Singh (mediator) and the other members of her in-laws’ family used to harass her. However, the couple was blessed with a child after five years of their marriage. Jaswinder Singh used to instigate her mother-in-law to oust the deceased from the house as the purpose of marriage of having a son had already been achieved. Harvinder Kaur, alongwith her son, Jagateshwar, was found dead in the evening of 1.6.1996. The FIR was lodged on 2.6.1996. It is clear from the perusal of the record that there was no allegation in the FIR as well as in the statements of other witnesses recorded under Section 161, Cr.P.C. with regard to demand of any dowry. 21. The case of the prosecution rests mainly upon the testimonies of the complainant-Paramjit Singh, PW6, his wife-Hardaman Kaur, PW14, Manmohan Kaur, PW15, the sister of PW14 and Harjinder Singh, PW11, the husband of Manmohan Kaur (PW15) and Manmohan Singh, PW12, a neighbour of the complainant, Parminder Singh at Haldwani (U.P.). As per the case of the prosecution, the complainant came to know about the harassment of the deceased through telephonic calls made by her from time to time. Two such phone calls were stated to be made out of which first was made on 24.5.1996 and other one in the morning on 1.6.1996. However, no record in this behalf has been produced by the prosecution to prove that these phone calls were ever made by the deceased or received by the witnesses. The statement 12 CRA No.526-SB of 2008, CRA No.1854-SB of 2009 and CRA No.1990-SB of 2009 pertaining to the phone calls was not placed on record and, therefore, the authenticity of these calls is not established in the absence of any record. Further, the complainant Paramjit Singh, PW6, in his statement, does not mention about the call having received on 1.6.1996. In the same manner, Manmohan Singh, PW13, does not talk about the call having received on 24.5.1996. As per the prosecution version, the call was made at the residence of Manmohan Singh. In the testimony of Paramjit Singh, PW6, it has come that a phone call was received on 24.5.1996 but subsequently, he seems to have improved his statement and stated that the phone call was received on 25.5.1996. He has tried to improve so as to bring in line the facts with the testimony of other witnesses. Therefore, the fact remains that in view of this contradiction as regards the date of receipt of phone call and in the absence of any record/statement of phone calls having not been placed on record by the prosecution, the authenticity of the phone calls becomes doubtful. The statement of phone calls allegedly made by the deceased, is an important link evidence but the same was not brought on record by the prosecution and there is no explanation to this effect, therefore, the story of the prosecution with regard to the telephonic calls is not credible and trustworthy. 22. There appears to be material improvements in the statements of complainant, Paramjit Singh, PW6 and Manmohan Kaur, PW15. From a perusal of the record, it is made out that there is no allegation with regard to the demand of dowry in the initial prosecution version. From 13 CRA No.526-SB of 2008, CRA No.1854-SB of 2009 and CRA No.1990-SB of 2009 the statements of these two witnesses, it is made out that the harassment on account of demand of dowry started after the birth of the child and this appears to be material improvement made with an oblique motive of introducing new motive with regard to the death of Harvinder Kaur and the same cannot be relied upon to establish the reason for committing suicide. 23. As per the case of the prosecution, there is no specific instance of any harassment nor any reason is forthcoming as to why the deceased would be harassed. It is clear that the prosecution witnesses were not even aware of the mental status of the appellant and the fact that the deceased was handling the affairs of business and bank transactions of appellant, her husband. From the statement of Shivinder Kumar, DW1, Accountant of Punjab State Cooperative Bank, Sector 37, Chandigarh, it is clearly established that the bank account was being regularly operated by the deceased and even on the date of occurrence i.e., 01.06.1996, she deposited money in the bank account of her father-in- law, Sardar Singh. Another relevant factor that invites attention of this Court is the statement of Dr. Ajit Awasthi, DW4. He has proved the mental condition of appellant Bachitter Bir Singh, to say that he is suffering from Paranoid (Schizophrenia) and the treatment is continuing till date as per medical certificate, dated 12.05.2010, showing that the appellant is suffering from chronic mental ailment since 28.02.1984. The certificate in question is issued by the Department of Psychiatry, PGIMER, Chandigarh. 14 CRA No.526-SB of 2008, CRA No.1854-SB of 2009 and CRA No.1990-SB of 2009 24. Before dealing with the contention raised by learned counsel for the appellant regarding applicability of Section 306 IPC in the facts of the present case, it is deemed to be appropriate to reproduce provisions and ingredients of Section 306, which read as under:- “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” 25. I find that there is nothing on record to suggest that there was any instigation, provocation by words or acts by any of the accused to any effect for letting alone to suggest anything of the kind that compelled the deceased, Harvinder Kaur, to take such an extreme step of finishing her life. To bring an offence under the purview of Section 306, IPC, it is required to prove that the accused had created such circumstances that the deceased had no other option but to end her life or that there was harassment, instigation to such an extent which may force the deceased to take the extreme step of committing suicide. 26. The interpretation of what may amount to “Abetment” in terms of Section 107 IPC, was drawn by the Hon’ble Supreme Court in Ramesh Kumar’s case (supra) and the Court held as under:- “20. Instigation is to goad, urge forward, provoke, incite or encourage to do “an act”. To satisfy the 15 CRA No.526-SB of 2008, CRA No.1854-SB of 2009 and CRA No.1990-SB of 2009 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 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.” 27. As regards the applicability of Section 120-B, IPC, in the facts and circumstances of the present case, let us first read the provisions of this Section, which read as under:- 120B. Punishment of criminal conspiracy. (1) Whoever is a party to a criminal conspiracy to commit an offence punishable with death, {Subs.by Act 26 of 1955, s.117 and Sch., for "transportation"} [imprisonment for life] or rigorous of imprisonment for a term of two years or upwards, shall, where no express provision is made in this Code for the punishment of such a conspiracy, be punished in the same manner as if he had abetted such offence. 16 CRA No.526-SB of 2008, CRA No.1854-SB of 2009 and CRA No.1990-SB of 2009 (2) Whoever is a party to a criminal conspiracy other than a criminal conspiracy to commit an offence punishable as aforesaid shall be punished with imprisonment of either description for a term not exceeding six months, or with fine or with both.] 28. In the cases where conspiracy has been alleged, the same has to be proved by leading cogent evidence. In the present case, the accused- appellant, Bachitter Bir Singh and the deceased, Harvinder Kaur, had been married for about 9 years and it would be too far fetched to say that there was conspiracy among the accused over such a long span of time to compel the deceased to commit suicide, particularly when there is no evidence coming on record to even pin point any particular