Criminal Revision No.1665 of 2008 1 IN THE HIGH COURT OF PUNJAB & HARYANA, CHANDIGARH Criminal Revision No. 1665 of 2008 Date of Decision: May 19, 2009 Dharambir Singh ...........Petitioner Versus State of Haryana and others ..........Respondents Coram: Hon'ble Mrs. Justice Sabina Present: Mr.S.N.Yadav, Advocate for the petitioner. ** Sabina, J. Respondents No. 2 to 4 were tried for an offence under Sections 306/34 of the Indian Penal Code (`IPC' for short) in FIR No.147 dated 28.10.2006 registered at Police Station Kosli by the Sessions Judge, Rewari. Vide impugned judgment dated 4.4.2008, they were acquitted of the charge framed against them. Aggrieved by the same, complainant- Dharambir Singh has filed the present revision petition. The case of the prosecution, as noticed by the trial Court in para 2 of its judgment, is reproduced here in below:- “Dharambir Singh complainant is a resident of village Koyalpur. Kuldip Singh, a son of his uncle was married on 13.5.2006 with Sneh Lata daughter of Ram Kishan in village Bhakli. On 17.10.2006 Kuldip Singh had come to his in-laws at village Bhakli. The moment he reached the door of the house of his in- Criminal Revision No.1665 of 2008 2 laws, his parents-in-law named Ram Kishan and Ramrati had pushed him away. They had also threatened him of being killed if he ever came to their house in future. Kuldip Singh returned home at that time and narrated the incident to his mother and the complainant. On 27.10.2006 after bringing it to the notice of the complainant, Kuldip Singh again came to his in-laws. At about 4.30 p.m., some unknown person gave information on telephone that the dead body of Kuldip Singh was lying in the area of village Bhakli in vehicle No.HR-47-6888. It was found later on from the driver of the said vehicle that the dead body had been shifted to his vehicle from vehicle No. HR-47A-1936. Vehicle No. HR-47- 6888 was found by the complainant in front of the Government Hospital of Kosli. Suspecting Ram Kishan, Ramrati and their daughter Sneh Lata to have killed Kuldip Singh by giving him some poison, Dharambir Singh made a written report to SHO Police Station Kosli. Lal Chand SI/SHO to whom this written complaint was presented, made his endorsement on the same. The complaint was presented to him at the new building of the Police Station where Police Station Kosli had yet to be shifted. The complaint of Dharambir Singh was sent to Police Station Kosli where Desh Raj MHC recorded the formal FIR. Special reports of the case were sent to the Illaq Magistrate and others. Lal Chand SI then accompanied Dharambir Singh to PHC Kosli where he found the dead body of Kuldip Singh in a Tata 407 bearing registration No.HR-47-6888. The photographer was called to take photographs of the dead body. The spot was examined and its Criminal Revision No.1665 of 2008 3 rough site plan was prepared in the inquest proceedings. Statements of the witnesses were recorded. After completion of the inquest proceedings, the dead body of Kuldip Singh was sent to General Hospital Rewari for post-mortem examination. Dr.Sameer Dagar conducted post-mortem examination on the dead body of Kuldip Singh on 28.10.2006 having Dr.M.K.Narang and Dr.Suresh Chauhan on the panel. After the post-mortem examination, the doctors handed over sealed parcels containing viscera and clothing of the deceased to Subhash Chand Head Constable who was accompanying the dead body. Subhash Chand Head Constable gave the same to Lal Chand SI who took the same into possession by way of a recovery memo. Lal Chand SI then visited the place near Grain Market Kosli wherefrom vomitus stained earth was taken into possession after giving it the shape of parcel and sealing it with seal LC. Statements of the witnesses were recorded. The case property, on return to Police Station,was handed over to the MHC. The accused were arrested on 31.10.2006. A site plan to scale of the place of occurrence was got prepared from Dharam Pal constable-cum-draftsman on the pointing of the place by Har Lal panch. Statements of the photographer, draftsman and the people who had handled the case property were recorded. On 5.12.2006, on completion of the investigation, challan against the accused was prepared by Ami Lal SI/SHO. Learned counsel for the petitioner has submitted that Kuldip Singh was married to respondent No.4 on 13.5.2006. Differences arose Criminal Revision No.1665 of 2008 4 between them after marriage and as a result, respondent No.4 left the matrimonial home and started residing with her parents. On 17.10.2006, Kuldip Singh since deceased had gone to his in-laws house but he was pushed away by respondents No. 2 to 4 and was threatened that he would be killed in case he would come to their house in future. Due to this reason, Kuldip Singh committed suicide on 27.10.2006. In the present case, the marriage between the deceased Kuldip Singh and respondent No.4 was solemnized on 13.5.2006. Due to matrimonial discord, respondent No.4 started residing with her parents. As per the prosecution case, Kuldip Singh since deceased had gone to the house of his parents on 17.10.2006, however, he was pushed away and was threatened that he would be killed in case he again visited their house by respondents No. 2 to 4.. As per PW8 Dharambir Singh, Kuldip Singh left for his in- laws house on 27.10.2006 but did not return back home. Learned trial Court has observed that ,in fact, there was no evidence on record to connect that Kuldip Singh, deceased had gone to the house of his in-laws on 27.10.2006. Learned trial Court has further observed in paras 15 to 22 of its judgment which reads as under:- “15. Ex.PJ is the post-mortem report of Kuldip Singh. In the same, Dr.Sameer Dagar PW12 noticed two light brown coloured small abrasions, one on the left cheek and the other on the left side of the neck. Not only Dr.Sameer Dagar did not take them to have been the cause of death of Kuldip Singh, they could not in any way have contributed to the cause of death of Kuldip Singh. Dr.Sameer Dagar took viscera and the chemical examiner Criminal Revision No.1665 of 2008 5 vide his report Ex.PL found the sample of stomach, small and large intestines, lungs, liver, spleen, kidney and blood to test positive for organo phosphorous compound group of insecticides. On this report, Dr. Sameer Dagar vide his endorsement dated 24.8.2007 opined that the death of Kuldip Singh was due to organo phosphorous poisoning. In case of death by poisoning, the first impression that appears in the mind of any person is of suicide. There is no circumstance on the record pointing to the administration of poison to Kuldip Singh by force by any other person and so, it can be safely held to be a case of suicide. 16. Section 306 IPC makes the abetment to commit suicide punishable. Abetment is defined under Section 107 of the Indian Penal Code. A person who instigate another person to do something is said to have abetted the doing of that thing. Intentional aid by any act or illegal omission to do something also amounts to abetting the commission of that thing. The definition of abetting also includes engaging by a person with one or more other persons in any conspiracy for doing of that thing if an at or illegal omission take place in pursuance of that conspiracy and in order to going of that thing. 17. Kuldip Singh is claimed by the prosecution to have visited his in-laws on 17.10.2006. Returning home, he told his mother and Dharambir Singh PW8 that his parents-in-laws pushed him away from their house and had threatened him of being killed if he again came to their house. Kuldip Singh is stated by Dharambir Singh PW8 to have again started alone for his in-laws' Criminal Revision No.1665 of 2008 6 house at Bhakli on 27.10.2006. There is no evidence on the record to prove that he had reached the house of his in-laws on 27.10.2006. 18. Har Lal PW9 has something relevant to say on this aspect. According to him on 27.10.2006 at about 3.30. p.m., when he was at his house in village Bhakli, Ram Kishan son of Paras Ram, his co-villager, came to him. Ram Kishan son of Paras Ram is one of the accused. Ram Kishan informed Har Lal about his son-in-law having consumed some poisonous material and when Har Lal accompanied Ram Kishan, he found Kuldip Singh lying at a distance of 100 yards from Grain Market Kosli. Kuldip Singh was writhing in pain. He was rushed to Civil Hospital Kosli where the doctor on account of his own illness failed to treat him and before he could be taken to CHC Nahar or General Hospital Rewari, he died. 19. Statement of Har Lal PW9 makes it clear that Ram Kishan knew about his son-in-law having consumed some poisonous material. The question that arises now is as to whether this statement of Har Lal could be taken as evidence to prove that Kuldip Singh had reached his in-laws house and he was again ill treated. Raising of such an inference from the statement of Har Lal would be stretching the statement of Har Lal too far. From his statement, it cannot be gathered that Kuldip Singh had reached the house of his in-laws and was misbehaved with by the accused. 20. From the statement of Dharambir Singh that on 17.10.2006, Kuldip Singh reached the house of his in-laws and was pushed Criminal Revision No.1665 of 2008 7 away and was threatened of being killed if he again visited their house by Ram Kishan and Ramrati, it can be inferred that there was some matrimonial discord between Kuldip Singh and his wife Sneh Lata. Ramrati and Ram Kishan were there on the side of his wife Sneh Lata. It could be further inferred that they did not want to entertain Kuldip Singh at their house and their thinking in terms of sending of their daughter with Kuldip Singh was out of question. 21. Statement of Kuldip Singh made on 17.10.2006 to his mother and Dharambir Singh, out of whom only Dharambir Singh has appeared as PW8 is to the effect that he reached his in-laws house and he was pushed away by Ram Kishan and Ramrati with the threat of being killed if he again came to their house. The question that arises here is as to whether this statement of Kuldip Singh coming from the mouth of Dharambir Singh is admissible in evidence or not . Section 32 of the Evidence Act deals with relevancy of the statements made by persons who are dead or could not be found. If the statement is made in the course of business it becomes relevant under Section 32(2) of the Evidence Act. The statements covered by sub-sections(3) to (8) touch different aspects but none covers the statement in hand. It is only sub section (1) that could cover this statement and that too if the statement related to the cause of death of the maker of the same. In the strict sense, the statement of Kuldip Singh that on 17.10.2006 he visited the house of his in-laws and was pushed away by Ram Kishan and Ramrati and was threatened of being Criminal Revision No.1665 of 2008 8 killed if he again came to their house does not relate to the cause of his death. Kuldip Singh did not die on 17.10.2006 or even thereafter. He is even stated to have again started for his in-laws house on 27.10.2006 and so, it can be said that the behaviour of Ram Kishan and Ramrati towards Kuldip Singh did not give him the reason to commit suicide on 27.10.2006. A person who was rebuffed on 17.10.2006 by Ramrati and Ram Kishan accused cannot be expected to have started alone for their house only 10 days after the said occurrence. So, the statement of Kuldip Singh coming from the mouth of Dharambir Singh PW8 regarding the conduct of accused Ram Kishan and Ramrati towards Kuldip Singh is not only a relevant fact, it even does not appear to be reliable. Dark colur of Kuldip Singh could not be a reason for disliking Kuldip Singh by Ram Kishan and Ramrati. It cannot be said that they had married their daughter to a person of dark colour with open eyes and soon thereafter started disliking that person on account of the colour of his skin. If there was reason with the accused to keep him away from their house, it could not be the dark colour of the deceased. 22. What happened to Kuldip Singh on 27.10.2006 is shrouded in mystery. The circumstances in which Kuldip Singh consumed the poison have not become clear on the record. To say that he had reached the house of the accused and they had treated him in such a manner which amounted to instigating Kuldip Singh to commit suicide would be nothing but a piece of imagination on which conviction could not be based. The conduct of the accused Criminal Revision No.1665 of 2008 9 towards Kuldip Singh on 17.10.2006 does not attract Section 306 IPC while there is no evidence on the record of the accused abetting his commission of suicide on 27.10.2.006. It is,therefore, a case of no evidence of the prosecution to bring home the guilt of the accused for the offence punishable under Section 306 IPC. Consequently, the accused are acquitted of the charge. File be consigned.” The reasons given by the learned trial Court while acquitting respondents No. 2 to 4 of the charge framed against them are sound reasons. Section 107 IPC reads as under:- "Abetment of a thing:- A person abets the doing of a thing, who- First-Instigates any person to do that thing; or Secondly-Engage with one or more other person or persons in any conspiracy for the doing of that thing, if an act or illegal omission takes place in pursuance of that conspiracy, and in order to the doing of that thing; or Thirdly-Intentionally aid, by any act or illegal omission, the doing of that thing." The prosecution has failed to establish the circumstances under which Kuldip Sigh had consumed poison. It is settled proposition of law that suspicion howsoever, strong maybe, cannot take substitute of proof. Law cannot afford any other favouriate than the truth. It appears that the FIR was lodged against respondents No. 2 to 4 merely on the basis of suspicion that they have been instrumental in abetting the suicide committed by Kuldip Singh. Assuming that respondents No. 2 to 4 had asked Kuldip Singh not to visit their house again on 17.10.2006 and Criminal Revision No.1665 of 2008 10 threatened him with dire consequences, it would not give a reason to Kuldip Singh to commit suicide. There was a gap of ten days between threat and suicide and Kuldip Singh had sufficient time to think and rethink over the matter. The ingredients of `abetment' are totally absent in the instant case for an offence under Section 306 IPC. It appears that the deceased was a victim of his own conduct unconnected with the incident dated 17.10.2006. It has been held by the Apex Court in Satyajit Banerjee vs. State of West Bengal (ST), 2004 (10) JT 27 that direction for de novo trial could be given in extraordinary case where Court was convinced that entire trial was farce. Revisional Jurisdiction against the order of acquittal at the instance of the complainant, has to be exercised by the High Court only in very exceptional cases where the High Court finds defect of procedure or manifest error of law resulting in flagrant miscarriage of justice. The present case does not warrant a retrial. A finding of acquittal, as per Section 401(3) of the Code of Criminal Procedure, cannot be converted into a finding of conviction by this Court. Accordingly, this revision petition is dismissed. (Sabina) Judge May 19, 2009 arya