CRR No.1573 of 2008 (O & M) -1- IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH ***** CRR No.1573 of 2008 (O & M) Date of decision : 7.9.2011 Sumitra Devi ........Petitioner Vs. State of Haryana and another ......Respondents CORAM : HON'BLE MR. JUSTICE AJAI LAMBA Present:- Mr. Harsh Aggarwal, Advocate, for the petitioner Mr. B.S.Saini, Senior DAG, Haryana --- AJAI LAMBA, J (Oral) This criminal revision is directed against order of charge dated 27.5.2008 and charge sheet whereby the petitioner has been charged to stand trial for commission of offence under Section 306 of the Indian Penal Code. Contention of the learned counsel is that even if the entire incriminating evidence against the petitioner is taken at its face value, no offence can be said to have been committed under Section 306 of the Indian Penal Code, in so much as, ingredients of Section 107 of the Indian Penal Code are not satisfied. In this regard reference has been made to contents of the FIR and statements of Harkesh, Shamsher and Randhir, recorded under Section 161 of the Criminal Procedure Code, 1973, during the course of investigation. In this regard learned counsel appearing for the petitioner has also relied upon judgment of the Supreme Court of India in the case of 'Sanju @ Sanjay v. State of Madhya Pradesh, 2002 (5) SCC 371 (para 12)'. Learned counsel appearing for the respondent-State has argued that there is sufficient evidence available so as to frame charge, in view of the fact CRR No.1573 of 2008 (O & M) -2- that petitioner/accused Sumitra Devi was earlier married to Jagdeep who was elder brother of Kuldeep-the complainant. Kuldeep is the husband of Sumitra Devi. Even Jagdeep died on account of conduct and attitude of Sumitra Devi. It has further been argued that the judgment, on which learned counsel appearing for the petitioner has relied, does not apply to the facts and circumstances of the case. Before proceeding further, the material collected by the prosecution that is considered for framing of charge, is required to be taken into account. Kuldeep-the complainant is none other but the husband of Sumitra Devi-accused/petitioner. Deceased Patti Ram father of Kuldeep was retired Assistant Sub Inspector from Haryana Police and had been living with his son Kuldeep and daughter-in-law Sumitra Devi. Patti Ram committed suicide on 23.10.2007 by going before a running train. It appears that on the date of incident complainant had gone to Karnal in connection with some case. In the evening he was informed telephonically about the death of his father and therefore, came back and identified the body of his father-Patti Ram. Next day after post-mortem and performance of last rites, on arriving home he was informed by his mother Dhan Kaur and persons working at the residence, namely Harkesh son of Ram Kishan Plumber and Shamsher son of Shri Shoyran, that on 23.10.2007 wife of the complainant, namely Sumitra Devi on trifle issue, like making tea, had said bad words to Patti Ram and pushed him and asked him to die under a train and go away from the home. Mother of the complainant and other persons, named above, intervened, upon which bad words were said by the petitioner to them also. On being abused, the deceased wrote a letter/note in his room CRR No.1573 of 2008 (O & M) -3- which perhaps was in regard to his death which was torn by Sumitra Devi-the petitioner. It has been said in the FIR that the petitioner in the same manner had been insulting father of the complainant, and her (petitioner's) brothers Rohtas and Balbir, whenever they visited the house of the complainant, often used to comment that this old man had become a burden for her and nobody knows when he would die. Father of the complainant was repeatedly told that he was old and had become burden upon her and did not know when he would die. In this manner, he was being harassed and insulted. It has further been said in the FIR that Sumitra Devi was married 17 years back with elder brother of Kuldeep who, because of her conduct, committed suicide by consuming poison. After that Sumitra Devi was married to the complainant. On the advice of the father (deceased) the complainant had been tolerating the insult given to the father. Sumitra Devi and her brothers also threatened to kill the complainant. It has been said that it is on account of the insult caused by the petitioner that father of the complainant had committed suicide. There are three witnesses whose statements are relevant namely; Harkesh, Shamsher and Randhir, whose names have been mentioned in the FIR. As per witnesses Harkesh and Shamsher, while they were present in the house, Patti Ram asked the petitioner to make tea. The petitioner did not pay any heed. After some time Patti Ram again requested her to make tea, whereupon the petitioner started abusing her father-in-law namely; Patti Ram and said that when this old man would die. The deceased has been troubling her-the petitioner-accused. He has been spitting, urinating, coughing and demanding tea the whole of the day. Then deceased Patti Ram CRR No.1573 of 2008 (O & M) -4- opposed her and said that he had given all his money which he had earned in his entire life, to them (complainant), now even tea is not available and he had to go outside for urination and spitting. On this, the petitioner got annoyed and started abusing the deceased. While abusing she pushed the deceased and told him to die somewhere under a train. On the events going out of hand, the two persons namely; Harkesh and Shamsher intervened. Patti Ram went to his room crying. After finishing the work assigned to Harkesh and Shamsher, they went upstairs where Patti Ram was seen writing something on the paper. During conversation, Patti Ram told the witnesses that it had become very hard to live in this home. Randhir Singh, tea stall owner, appears to be the person, as per his statement under Section 161 of the Criminal Procedure Code, 1973, from whom the deceased had taken tea on 23.10.2007 at about 2.30 P.M. in his shop. The witness has stated that Patti Ram seem to be depressed. When he was served tea, Patti Ram said that it was the last tea. He shall not meet him again. He gave ` 100/-for clearing his previous balance and another ` 100/- for the doctor. On questioning, the deceased responded that his daughter-in- law does not want to see him and pushed him out of the house and asked him to die somewhere under a train. It has become too hard to live in the house and therefore, he has to end his life somewhere under a train. Circumstances make it evident that on the same day Patti Ram died while being crushed under a train. The judgment on which reliance has been placed by learned counsel for the petitioner reads as under (relevant para ):- “12. Reverting to the facts of the case, both the courts below have erroneously accepted the prosecution story that the suicide by the deceased is the direct result of the CRR No.1573 of 2008 (O & M) -5- quarrel that had taken place on 25.7.1998 wherein it is alleged that the appellant had used abusive language and had reportedly told the deceased “to go and die”. For this, courts relied on a statement of Shashi Bhushan, brother of the deceased, made under Section 161 Cr.P.C. when reportedly the deceased, after coming back from the house of the appellant, told him that the appellant had humiliated him and abused him with filthy words. The statement of Shashi Bhushan, recorded under Section 161 Cr.P.C. is annexed as Annexure P-3 to this appeal and going through the statement, we find that he has not stated that the deceased had told him that the appellant had asked him “to go and die”. Even if we accept the prosecution story that the appellant did tell the deceased “to go and die”, that itself does not constitute the ingredient of “instigation”. The word “instigate” denotes incitement or urging to do some drastic or inadvisable action or to stimulate or incite. Presence of mens rea, therefore, is the necessary concomitant of instigation. It is common knowledge that the words uttered in a quarrel or on the spur of the moment cannot be taken to be uttered with mens rea. It is in a fit of anger and emotion. Secondly, the alleged abusive words, said to have been told to the deceased were on 25.7.1998 ensued by a quarrel. The deceased was found hanging on 27.7.1998. Assuming that the deceased had taken the abusive language seriously, he had enough time in between to think over and reflect and, therefore, it cannot be said that the abusive language, which had been used by the appellant on 25.7.1998 drove the deceased to commit suicide. Suicide by the deceased on 27.7.1998 is not proximate to the abusive language uttered by the appellant on 25.7.1998. The fact that he deceased committed suicide on 27.7.1998 would itself clearly point out that it is not the direct result of the quarrel taken place on 25.7.1998 CRR No.1573 of 2008 (O & M) -6- when it is alleged that the appellant had used the abusive language and also told the deceased to go and die. This fact had escaped notice of the courts below.” In the judgment, relied upon on behalf of the petitioner, the quarrel took place on 25.7.1998 wherein abusive language was used and the deceased was told to go and die. Brother of the deceased gave the statement to that effect. It has been held that no mens rea can be read in the facts and circumstances of the case as it is common knowledge that words uttered in quarrel and at the spur of a moment cannot be taken to be uttered with intention. The said words could be uttered in a fit of anger and emotion. More importantly, the Hon'ble Supreme Court of India has taken into account the fact that while the abusive words were said to have been spoken to the deceased on 25.7.1998 when the quarrel took place, whereas the deceased committed suicide on 27.7.1998. On account of the time gap between 25th and 27th of July, the Hon'ble Supreme Court has held that the deceased has enough time to think in between and reflect and therefore, it could not be said that abusive language which had been used on 25.7.1998 drove the deceased to commit suicide. Suicide by the deceased on 27.7.1998 is not proximate to the abusive language uttered by the petitioner on 25.7.1998. Even otherwise the petitioner-accused in the said case was brother of wife of deceased. On account of the relationship the two were not staying in one house. In the case in hand, the facts are clearly distinguishable. The material available on record indicates that after retirement from Police Service, the deceased gave all his money to the petitioner and his son. On minor incidents, the deceased was being abused persistently in the past. On CRR No.1573 of 2008 (O & M) -7- 23.10.2007 the incident is stated to have taken place in the physical presence of Harkesh and Shamsher with specific attribution that Patti Ram should go and die. The deceased, an old man, was abused in presence of his helper and was pushed. It indicates that a person of advanced age was given a push by none other but by his daughter-in-law and the abusive words were used in the presence of other witnesses in the house due to which he committed suicide the same day. Section 107 of the Indian Penal Code provides that a person is said to abet the doing of a thing-who instigate any person to do that thing and who intentionally aids by any act or illegal omission the doing of that thing. In the case in hand, the circumstances that emerge, on consideration of the statements of witnesses, do not enable this Court to draw a prima facie conclusion to the effect that commission of offence under Section 306 of the Indian Penal Code is not made out. It would be for the trial Court to consider the entire evidence, facts and circumstances, and then determine whether the petitioner abetted the commission of suicide by Patti Ram, deceased. On mere reading of the FIR and statements recorded under Section 161 of the Criminal Procedure Code, 1973, in peculiar facts and circumstances of this case, it cannot be held that prima facie no offence has been committed. In such circumstances, I am of the considered opinion that no illegality can be traced in the impugned order vide which charge under Section 306 of the Indian Penal Code has been ordered to be framed. The petition is accordingly dismissed. (AJAI LAMBA) JUDGE 7.9.2011 akm