IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA Cr. Appeal No. 294 of 2002 Date of Decision 13th October, 2011 ________________________________________________________ State of H.P. ….Appellant Versus Chet Ram ….Respondent. ________________________________________________________ Coram The Hon’ble Mr. Justice R.B. Misra, J. The Hon’ble Mr. Justice Dev Darshan Sud, J. Whether approved for reporting?1 ________________________________________________________ For the Appellant: Mr. R.K. Sharma, Sr. Additional Advocate General with Mr. Rajinder Dogra, Addl. A.G. For the Respondents: Mr. Amit Sharma, Advocate. __________________________________________________________________ Dev Darshan Sud, J.(oral) This appeal has been preferred by the State against the judgment passed by the learned Sesisons Judge, Shimla acquitting the respondent for offences under Section 306 of the Indian Penal Code (hereinafter referred to as the IPC) for which he was charged for having instigated his wife Meera Devi to commit suicide. 1 Whether Reporters of Local Papers may be allowed to see the judgment? 2 2. The case of the prosecution was that accused Chet Ram and his cousin Jagdish Chand were challaned for offences under Sections 306 read with Section 34 IPC on the basis of a First Information Report lodged by Ramesh Chand PW1 brother of the deceased on 7.5.1999 alleging that deceased Meera Devi had been married to one Sant Ram and that from that wedlock he had one daughter who is aged about nine years. He used to ill-treat the deceased and the marriage was dissolved. After a period of two years, Meera Devi was married to Chet Ram who has a son and daughter from her, aged about six and three years respectively. After some time the accused started ill-treating Meera as she was subjected to beating and was used to be turned out of the matrimonial home and was not provided enough sustenance, like meals and clothing etc. Whenever she complained about this fact to her brother, he used to advise her to live with her husband. About a year prior to the incident, she came to the house of her father and again complained about the maltreatment/rough shod behaviour of the accused and the fact that Jagdish Chand who was the son of Mama (maternal uncle) of Chet Ram had evil designs on her and wanted to molest and outrage her modesty for which he used to harass/torment her. At that time, she threatened that she would commit suicide if the maltreatment/harassment meted out to her at the instance of Jagdish Chand did not stop. She stated that whenever she complained about this fact to her husband, he always put off the matter on one pretext or the other. About 8 or 10 days prior to the date of lodging the First Information Report, one Lachhi Ram, son of Kanshi Ram, who was resident of the same village of PW1 3 Ramesh Chand informed him that he had gone to visit the house of his relatives in the village of accused, where he met Meera deceased who was crying and disclosed that she has been harassed by her husband and his cousin Jagdish Chand. In the intervening night of 3/4th May, 1999, at around 2 AM he was approached by PW2 Ramesh Chand son of Meena Ram and one Deep Ram that on the previous morning around 8 O’clock, Meera Devi had consumed pesticides and thereafter, she was taken to the hospital at Balag, where she had died. According to PW1 Ramesh, she had committed suicide due to continued maltreatment/harassment meted out to her by her husband- accused-respondent Chet Ram and Jagdish Chand. 3. The record of the case shows that challan was prepared on 29.12.1999 and the file was put up before the District Attorney and Deputy District Attorney for scrutiny, who opined that the name of Jagdish Chand should be deleted from the array of accused persons as according to them, no offence was made out against this person. Fresh report was recorded, wherein it was stated that if it is found that Jagdish Chand had committed any offence, he would be arraigned as an accused person. The prosecution examined 11 witnesses and the respondent examined one witness in his defence. 4. The case was taken up for consideration/argument by the learned trial Court on 29.10.2001, 3.11.2001, 13.11.2001 when an application was moved under Section 319 of the Code of Criminal Procedure (hereinafter referred to as the Cr.P.C.) with a prayer for summoning Jagdish Chand as an accused. The learned Court on consideration of the testimony of PW1 Ramesh 4 Chand and PW4 Laiq Ram did not accept the prayer of the prosecution. We do not find on record that any proceedings were instituted for challenging the rejection of application under Section 319 Cr.P.C. The learned trial Court, records that the case is one of unnatural death of a married woman, but no evidence has been led by the prosecution about the factum as to where the husband was, when the deceased consumed pesticides. The Court noted the evidence of PW2 Ramesh Chand son of Meena Ram. The relevant portion of his testimony reads: “3.5.1999 ko jab main Dula Ram kee bahin kee maatam purshi mein jaa raha to maine Meera Devi ko Sunder Singh ke makaan se 50 gaj par rasta mein jo Dhabaas gaon ko jata hai dekha. Maine Meera ko puchha ki kaya ho gaya hai. Vah sans lene mein kathinai mahsoos kar rahi thi. Mere puchtaach karne par usne bataya ki uske pati Chet Ram ne usse durvayvahaar kiya kyonki muljim ke mama ke ladake ke saath sambandh hai. Usne kaha ki kewal uska pati Chet Ram use tang karta hai. Maine uske munh se kisi jahrile pardarath ki buu pai. Maine muljim ko bulaya aur hum dono ne use Sunder Singh ke ghar le gaye. Tab hamne gaon ke dusre log bulaye aur tab use hum Vasadhar haspatal le gye. Jagdish vahan par na tha aur na hi vah Sunder Singh ke ghar aaya. Jab Meera ko hum vahan le gaye. Meera mere chacha ki ladaki thi. Muljim bhi mere chache kaa ladka hai, kayonki vah mere mata ki bahin kaa ladka hai. Tab main maritak ke bhai Ramesh Chand ke ghar use suchna dene ke liye gya. Sunder Singh ke ghar se police ne aik steel kaa gilas aur aik lifafa jisme kuch keetnashak dawai thi, baramad kiye. Jabat vara aik gayapan taiyaar kiya jo Ext.PB hai.” Translation:- On 3.5.1999 when I was going to mourn the death of the sister of one Dula Ram, I saw Meera Devi at a point about 50 yards away from the house of Sunder Singh, on the way 5 leading to village Dhawas. I asked Meera what had happened. She was felling difficulty in breathing. On inquiry by me she told that her husband Chet Ram ill-treated her, because he was suspecting that she was having an affair with Jagdish Chand, accused’s cousin. She told that only her husband Chet Ram used to harass her. I noticed foul smell of some poisonous substance, coming from her mouth. I called the accused and both of us took her to Sunder Singh’s house. Then we called other residents of the village and took her to the hospital at Basadhar. Jagdish was not there nor did he come to the Sunder Singh’s house when we took Meera there. Meera was the daughter of my uncle. Accused is also my cousin being my mother’s sister’s son. Then I went to the village to Ramesh Chand, a brother of the deceased to inform him about the incident. Police seized from the house of Sunder Singh a steel tumbler and an envelop containing some insecticide. Seizure memo was prepared which is Ext.PB. We have reproduced this evidence in detail as statement was made by the deceased to this witness, that Chet Ram had been ill-treating her because he suspected her fidelity. 5. The other evidence on record is that of PW1 Ramesh Chand, brother of the deceased, who says that she was maltreated at the instigation of one Jagdish Chand who used to instigate her husband and no action was taken by the accused when she complained about this maltreatment. He says that when he asked the accused not to quarrel with the deceased, then he replied that he was not in a position to check Jagdish Chand because as and when he asked him not to maltreat the deceased, he became violent and tried to assault him. In his 6 cross examination, he has stated that Sant Ram had divorced the deceased because of the maltreatment. 6. We have already considered the evidence of PW2 Ramesh Chand. PW3 Sumitra, mother of the deceased, tried to corroborate PW1 and adds that the deceased used to complain that she was ill-treated and turned out of the house by the accused. Everytime when she complained about the misbehaviour of Jagdish, he used to say that she should keep her daughter with her. In her cross examination, she says that Meera used to complain that Jagdish used to insult her. In cross examination, she admits that Meera was properly clothes and fed by her husband. 7. PW4 Laiq Ram brother of the deceased states in general terms that she was maltreated/harassed by the accused. PW5 Dr. Dalip Tegta, Medical Officer, Civil Hospital, Theog, who conducted the post-mortem, states that cause of death was asphyxia by consumption or administration of organophorous-48. This is the entirety of evidence on record. The other evidence is of the police personnels. 8. The learned trial Court holds that the accused could not be held guilty for instigating the deceased to commit suicide. 9. In Hans Raj vs. State of Haryana, (2004) 12 SCC 257 the Supreme Court considering the provisions of Section 306 IPC holds: “12. The question then arises as to whether in the facts and circumstances of the case the appellant can be convicted of the offence under Section 306 IPC with the aid of the presumption under Section 113-A of the Indian Evidence Act. Any person who abets the commission of 7 suicide is liable to be punished under Section 306 IPC. Section 107 IPC lays down the ingredients of abetment which includes instigating any person to do a thing or engaging with one or more persons in any conspiracy for the doing of a thing, if an act or illegal omission takes place in pursuance of that conspiracy and in order to the doing of that thing, or intentional aid by any act or illegal omission to the doing of that thing……..” (at p. 263) 10. In Randhir Singh and another vs. State of Punjab (2004) 13 SCC 129, the Court considered the essential requirements for establishing an offence under Section 306 IPC. The Court by considering the provision therein holds: “12. Abatement involves a mental process of instigating a person or intentionally aiding that person in doing of a thing. In cases of conspiracy also it would involve that mental process of entering into conspiracy for the doing of that thing. More active role which can be described as instigating or aiding the doing of a thing is required before a person can be said to be abetting the commission of offence under Section 306 IPC. 13. In State of W.B. v. Orilal Jaiswal (1994) 1 SCC 73 this Court has observed that the courts should be extremely careful in assessing the facts and circumstances of each case and the evidence adduced in the trial for the purpose of finding whether the cruelty meted out to the victim had in fact induced her to end the life by committing suicide. If it transpires to the court that a victim committing suicide was hypersensitive to ordinary petulance, discord and differences in domestic life quite common to the society to which the victim belonged and such petulance, discord and differences were not expected to induce a similarly circumstanced individual in a given society to commit suicide, the conscience of the court should not be satisfied for basing a finding that the accused charged of abetting the offence of suicide should be found guilty. (at p. 134) 8 To similar effect is the decision in Kishori Lal vs. State of M.P. (2007) 10 SCC 797 holding: “6. Section 107 IPC defines abetment of a thing. The offence of abetment is a separate and distinct offence provided in IPC. A person, abets the doing of a thing when (1) he instigates any person to do that thing; or (2) engages with one or more other persons in any conspiracy for the doing of that thing; or (3) intentionally aids, by act or illegal omission, the doing of that thing. These things are essential to complete abetment as a crime. The word “instigate” literally means to provoke, incite, urge on or bring about by persuasion to do any thing. The abetment may be by instigation, conspiracy or intential aid, as provided in the three clauses of Section 107. Section 109 provides that if the act abetted is committed in consequence of abetment and there is no provision for the punishment of such abetment, then the offender is to be punished with the punishment provided for the original offence. “Abetted” in Section 109 means the specific offence abetted. Therefore, the offence for the abetment of which a person is charged with the abetment is normally linked with the proved offence. 7. In cases of alleged abetment of suicide there must be proof of direct or indirect acts of incitement to the commission of suicide. The mere fact that the husband treated the deceased wife with cruelty is not enough. (See Mahendra Singh v. State of M.P. 1995 Supp (3) SCC 731). Merely on the allegation of harassment conviction in terms of Section 306 IPC is not sustainable. There is ample evidence on record that the deceased was disturbed because she had not given birth to any child. PWs 8, 10 and 11 have categorically stated that the deceased was disappointed due to the said fact and her failure to beget a child and she was upset due to this. (at p. 799) We also considered the decision in Sohan Raj Sharma vs. State of Haryana (2008) 11 SCC 215: “10. Section 306 IPC deals with abetment of suicide.The said provision read as follows: “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.” 9 11. “12. Abetment involves a mental process of instigating a person or intentionally aiding that person in doing of a thing. In cases of conspiracy also it would involve that mental process of entering into conspiracy for the doing of that thing. More active role which can be described as instigating or aiding the doing of a thing is required before a person can be said to be abetting the commission of offence under Section 306 IPC. 13. In State of W.B. vs. Orilal Jaiswal (1994) 1 SCC 73 this Court has observed that the courts should be extremely careful in assessing the facts and circumstances of each case and the evidence adduced in the trial for the purpose of finding whether the cruelty meted out to the victim had in fact induced her to end the life by committing suicide. If it transpires to the court that a victim committing suicide was hypersensitive to ordinary petulance, discord and differences in domestic life quite common to the society to which the victim belonged and such petulance, discord and differences were not expected to induce a similarly circumstanced individual in a given society to commit suicide, the conscience of the court should not be satisfied for basing a finding that the accused charged of abetting the offence of suicide should be found guilty.”* 12. “6. Section 107 IPC defines abetment of a thing. The offence of abetment is a separate and distinct offence provided in (the Act as an offence). A person, abets the doing of a thing when (1) he instigates any person to do that thing; or (2) engages with one or more other persons in any conspiracy for the doing of that thing; or (3) intentionally aids, by act or illegal omission, the doing of that thing. These things are essential to complete abetment as a crime. The word “instigate” literally means to provoke, incite, urge on or bring about by persuasion to do any thing. The abetment may be by instigation, conspiracy or intential aid, as provided in the three clauses of Section 107. Section 109 provides that if the act abetted is committed in consequence of abetment and there is no provision for the punishment of such abetment, then the offender is to be punished with the punishment provided for the original offence. “Abetted” in Section 109 means the specific offence abetted. Therefore, the offence for the abetment of which a person is charged with the abetment is normally linked with the proved offence. 10 7. In cases of alleged abetment of suicide there must be proof of direct or indirect acts of incitement to the commission of suicide. The mere fact that the husband treated the deceased wife with cruelty is not enough. (See Mahendra Singh v. State of M.P. 1995 Supp (3) SCC 731)”** (at p.217-218) 11. The law on the point has been crystallized by the Supreme Court and does not require any other elaboration. 12. From the evidence what we find is that accusing finger has been pointed out towards Jagdish Chand, son of the maternal uncle of the accused, but application under Section 319 of Cr.P.C. to implicate him has been rejected. The witnesses have stated that Jagdish was troubling the deceased and even wanted to commit illicit sexual intercourse with her. We find that after the rejection of application under Section 319 of Cr.P.C., no action was taken by the State to challenge that decision. We also find that evidence is totally insufficient to establish the ingredients of Section 306 IPC and no positive act has been established on the part of accused for actively instigating the deceased to end her life. In these circumstances, we find no merit in the appeal of State, which is accordingly rejected. 13. Before parting with the judgment, we cannot but express our surprise/bereavement on the fact that the State has been lackadaisical in prosecuting the case and has paid little attention to the role of Jagdish who, it seems, may have been responsible for the offence. (R.B. Misra) Judge October 13, 2011 (Dev Darshan Sud), ms Judge