IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. Criminal Revision No. 57 of 2006 Judgment reserved on : 9.11.2011 Date of decision: 8.12.2011 Bakshi Ram Vias son of Shri Guriya Ram, resident of Raboon, near SCERT, Post Office Saproon, Tehsil and District Solan, H.P. …Petitioner. Versus 1. Anil Kumar Saklani, son of Shri Kikkar Singh, resident of Village Paryal, Tehsil Sarkaghat, District Mandi, H.P. 2. State of Himachal Pradesh. ....Respondents. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting ? No For the Petitioner : Mr. N.K.Thakur, Advocate. For the Respondents. Mr. Rajeev Sood, Advocate, for respondent No.1. Ms. Ruma Kaushik, Addl. A.G. for respondent No.2. __________________________________________________________ Kuldip Singh, Judge The complainant has filed this revision against judgment dated 4.3.2006 passed by Additional Sessions Judge, Solan in Session Trial No. 4-S/7 of 2005 acquitting respondent No.1 for offence punishable under Section 306 IPC. The State has not challenged the acquittal of respondent No.1, therefore, petitioner has filed the revision. __________________ 1 Whether reporters of Local Papers may be allowed to see the Judgment ? Yes 2 2. The prosecution case, in brief, is that Shalini daughter of complainant PW-1 Bakshi Ram Vias was doing diploma in Mechanical Engineering at Govt. Polytechnical College, Sundernagar in the year, 2004. In February, 2004 Shalini went to take admission in 4th Semester in the diploma but instead of taking admission she solemnized marriage with respondent No.1 without consent and against wishes of her parents. This fact came to the notice of complainant on 16.2.2004 when he enquired about it at Sundernagar from his relatives. The complainant visited the house of respondent NO.1 in Village Pariyal, Tehsil Sundernagar where he found his daughter Shalini. He was told that Shalini had performed marriage with respondent No.1 in Arya Samaj Mandir, Solan. Shalini declined to accompany her father to her parental house. 3. The further case of the prosecution is that after about one month complainant received telephonic call from Shalini from the house of her sister-in-law (Nanad) in Shimla and told complainant that she was being maltreated by respondent No.1, who was extending unjust demand of money to purchase Qualis vehicle. On 4.4.2005 SMS message was received by the complainant from Shalini that she was being treated with cruelty by respondent No.1, she was fed up with him and wanted to kill herself. Shalini on account of constant maltreatment, torture by respondent No.1 consumed poisonous substance on 18.4.2005. She was rushed to Zonal Hospital, Solan where she was treated by PW-9 Dr. S.P.Singh, who opined that she was not fit to make statement, 3 she was referred to PGI, Chandigarh for further treatment where she died on 19.4.2005. 4. The police obtained MLC Ex.PM of the deceased from Zonal Hospital, Solan. The statement Ex.PA of complainant was recorded under Section 154 Cr.P.C. and FIR Ex.PR was registered at Police Station, Kasauli. The post-mortem report Ex. PU was obtained. The Investigating Officer recovered aluminium tube containing poisonous tablets vide memo Ex.PE. The contents of vomits of deceased Shalini were also lifted from the spot vide memo Ex.PF for chemical test. The mobile phone of complainant bearing No. 94181-08955 was taken into possession so also mobile phone bearing No. 98161-62692 from which SMS was sent to the complainant. The chemical reports Ex. PZ1 to Ex.PZ4 were obtained, which disclosd viscera of the deceased contained aluminium phosphide. 5. On completion of investigation challan was presented for offence punishable under Section 306 IPC against respondent No.1, who was charged for offence punishable under Section 306 IPC. The prosecution has examined 17 witnesses and produced several documents. The statement of respondent No.1 was recorded under Section 313 Cr.P.C., who pleaded his innocence but led no evidence in defence. On conclusion of trial, Additional Sessions Judge acquitted respondent No.1, hence revision by the complainant. 4 6. I have heard the learned counsel for the parties and have also gone through the record. It has been submitted by the learned counsel for the petitioner that learned Additional District Judge has erred in acquitting respondent No.1. The evidence has been misconstrued, mis-interpreted, the case has been proved against respondent No.1. Prayer has been made for setting aside the acquittal of respondent No.1. The learned counsel for respondent No.1 has supported the impugned judgment. On behalf of the State, submission has been made to pass appropriate order. 7. PW-1 has stated that on 19.2.2004 he visited village Pariyal and found Shalini in the house of respondent No.1. She told him that she had solemnized marriage with respondent No.1 and she was not ready to accompany him. He was not in favour of marriage of Shalini with respondent No.1 on account of ‘gotra’. He returned to Solan. 8. After lapse of one and half month, he received telephonic call from Shalini from the house of her husband’s sister. She told that her mother in law had treated her with cruelty. Respondent No.1 also gave her beatings at the instigation of her mother. She disclosed that cause of beatings were to provide some vehicle to her unemployed husband for earning. She has stated that her husband had also demanded Qualis vehicle. 9. On 15.7.2004 his wife told him that Shalini met her during day time, she was weeping stating that she would come to their house as she could not afford to stay no longer with respondent 5 No.1 as he was torturing her on petty matters and was demanding money from her repeatedly. He has stated that his elder daughter told him that Shalini had come to Solan and she had been beaten by respondent No.1, she had developed pain in her ear. The elder daughter took her to ENT specialist but he was not available in the hospital. Shalini was got checked up at Solan from a private doctor. 10. In December, 2004 he received telephonic message from his sister in law (wife’s sister) from Sanawar that Shalini had come to her house, who was beaten by her husband. Shalini wanted to talk to him. He talked on telephone with Shalini, who told that respondent No.1 was demanding money from her and on her failure to meet his unjust demand of money he gave beatings to her frequently. Shalini showed her reluctance to take the help of police. 11. On 4.4.2005 he received a call on his mobile at about 9.00 a.m. but he did not attend the call. He received SMS from Shalini on mobile stating that she was fed up with the behaviour of respondent No.1 and she no longer wanted to live with him. On 18.4.2005 at about 2.00 p.m. he came to know from telephonic message that Shalini had consumed poisonous substance and she had been taken to District Hospital, Solan by respondent No.1. Shalini was referred to PGI, Chandigarh. On the same date at about 8.00 p.m. he came to know from Sanjeev younger brother of respondent No.1 that Shalini was interested to meet her mother and brother at PGI but after 15 minutes another telephonic message was received from Sanjeev that Shalini was no more. 6 12. He has stated that Shalini had committed suicide due to ill treatment meted out at the hands of respondent No.1. He reported the matter to the police at PGI vide statement Ex.PA. In cross- examination, he has stated that SMS message is not readable, he met his daughter once at Solan bye-pass after 19.2.2004. Respondent No.1 has landed property and ancestral house. He never met Nanad of her daughter at Shimla. He could not say that in the year 2004 Reena (Nanad) was residing at Mandi with her in-laws. He could not say Reena was not having residence at Shimla nor any telephonic facility at Shimla. He never talked with respondent No.1 at any time regarding his relation with his daughter. 13. He has stated that father of respondent No.1 was an employee in Sanawar school, who after retirement in April, 2005 went to his native place. He has stated that his deceased daughter was residing at Sanawar with respondent No.1 in the quarter allotted to her father in law. Respondent No.1 was running two STD booths at Sanawar. He has shown his ignorance when his daughter took poison. Respondent No.1 was not present in the quarter and respondent No.1 tried to save her life by giving her salty water in order to help her to vomit out poison. He denied that deceased was socially boycotted by him and for this reason she was depressed and ended her life. 14. PW-2 Smt. Bimla Devi is the mother of deceased Shalini. She has stated that on 13.2.2004 she received a telephonic call from Shalini that she had married with respondent No.1 to which 7 she thought it was false information. She has stated that Shalini talked to them from Shimla from the house of her Nanad. She stated that she was tortured by her mother-in-law and respondent No.1 also tortured her for unknown reason. She has also stated that Shalini told her that respondent No.1 was giving beatings, maltreating and demanding money from her as he wanted to run business of Gym at Dharampur. On 18.4.2005 her sister told her from Sanawar that deceased had consumed something and she was taken to District Hospital, Solan, she was referred to PGI, Chandigarh where she died during night. She has stated that her daughter might have committed suicide because she used to tell that she was frequently tortured by respondent No.1 for demand of money. 15. In cross-examination, she has stated that she was against this marriage. The quarter of respondent No.1 at Sanawar was 10 minutes walk on foot from her school. The deceased was on visiting and speaking terms with the neighbours at Sanawar. She met the deceased after her marriage with respondent No.1 at Sanawar in July, 2004. She has stated that her daughter Shalini was sensitive. She admitted that respondent No.1 immediately took the deceased for her treatment. She has admitted that one STD booth was opened in the name of deceased at Sanawar where deceased was running the booth. 16. PW-3 Satya Devi has stated that Shalini was her niece (Bhanji). The deceased was residing at Sanawar with respondent No.1 and her father-in-law. She has stated that deceased had come 8 to her residence at Sanawar on 2.12.2004. Roop Lal neighbour in between also came. The deceased started weeping, Roop Lal told that deceased was being beaten by respondent No.1. Deceased also told respondent No.1 used to beat her and demanded money from her. In cross-examination, she has stated that she did not enquire from respondent No.1 as to why he used to torture the deceased. She did not talk with him regarding the relations. She was against the marriage of Shalini and respondent No.1. PW-4 C. Krishan Lal and PW-5 Varinder Singh are the witnesses of recovery. PW-6 Sunil Kumar took photographs Ex.P-5 to Ex.P-8 and negative Ex.P-9. PW-7 Kishori Lal has proved marriage entry Ex.PG indicating that Shalini and respondent No.1 married on 21.7.2003. PW-8 Desh Raj is a witness of recovery. 17. PW-9 Dr. S.P. Singh has stated that on 18.4.2005 at about 4.45 a.m. Shalini was brought to him with the alleged history of consuming some poisonous tablets. She was not fit to make statement at that time. He gave his opinion Ex.PL on the request of police Ex.PK. He issued MLC Ex.PM. Shalini was referred to PGI for further treatment. As per the report of chemical examiner Shalini had consumed aluminium phasphide. In cross-examination, he has stated that Shalini was accompanied by her husband Anil Saklani. If the poison is not absorbed in the blood, the vomits can be helpful for saving the life of the person to some extent. 18. PW-10 C. Shyam Lal, PW-11 HHC Sant Ram, PW12 MHC Ved Parkash and PW-13 MC Hardev Singh are not material 9 witnesses. PW-14 HC Bharat Singh on 27.4.2005 took into possession one aluminium tube and cup vide seizure memo Ex.PE. He also took the contents of vomits of deceased from the spot vide seizure memo Ex.PF. In cross-examination he has stated that Anil tried to save the deceased by giving her salty water for vomiting out poison, she also vomited at the spot which fact is recorded in seizure memo Ex.PE, Ex.PH and site plan Ex.PP. PW-15 S.I. Uday Chand has proved FIR Ex.PR. 19. PW-16 ASI Parkash Chand has stated that on 18.4.2005 intimation was received from P.S. Sadar, Solan that one Shalini had consumed poison and thereupon he lodged rapat Ex.PN at Police Post, Garkhal. On the basis of this intimation, he went to PGI on 19.4.2005 where he came to know that Shalini had expired. Ex.PA statement of Bakshi Ram was recorded by him, inquest papers were prepared and postmortem report Ex. PU of deceased Shalini was obtained from PGI. He obtained reports of FSL, Junga Ex.PZ-I to Ex.PZ-IV. The final opinion Ex.PZ-VI was obtained from the doctor at PGI, Chandigarh. 20. In cross-examination, he has stated that detail of SMS could not be found. Respondent No.1 had gone to nearby temple when the deceased took poisonous tablets. He recorded the statements of Roop Lal and Jia immediate neighbours of respondent No.1 and deceased, they had no knowledge about the relationship of deceased and respondent No.1. He perused the 10 ziminis and then stated that these witnesses disclosed that they did not see any quarrel between deceased and respondent No.1. 21. He has further stated that the police did not receive any complaint about the strained relationship of respondent No.1 and deceased. The deceased was running STD booth independently and her per day income was about ` 250/- from STD booth. No allegation of torture came during investigation against the mother of respondent No.1. He did not cut short the statement of complainant Ex.PA. The mobile Ex.P-2 produced by Sanjeev brother of respondent No.1 was not having any SMS message which was allegedly sent by the deceased to her father. He has stated that close relations of deceased were having their residences nearby. PW-17 Shashi Kant, Legal Advisor, Airtel has proved call details Ex.PY of mobile No. 98161-62692. 22. The respondent No.1 in his statement under Section 313 Cr.P.C. has denied the prosecution case and has stated that he never treated the deceased with cruelty, the relations were cordial. The deceased did not send SMS message to her father. The witnesses are instrumental in leading the deceased to depression and shock as they had severed all relations with the deceased and boycotted her socially. The witnesses are against him because he performed love marriage with the deceased. He tried to save the deceased by giving her salty water for vomiting and also took her immediately nearby hospital at Sanawar. He had deep love and 11 affection for the deceased who was over sensitive. She developed depression due to social boycott. 23. Ex.PA is the statement of PW-1 under Section 154 Cr.P.C. recorded on 19.4.2005 in which PW-1 has stated that in July, 2003 Shalini and respondent No.1 got married at Solan without his consent. Respondent No.1 had been visiting Sundernagar and asking Shalini to leave the course in Polytechnical College. Shalini and Anil stayed together at village Pariyal. They came to village Snawar via Shimla. Shalini at Shimla from the house of sister of Anil told the complainant on telephone that Anil had been giving beatings to her and asked him to call her back. Thereafter, Shalini had been telling her mother on phone about the beatings and cruelty of Anil for bringing money for purchasing Qualis vehicle for running taxi and opening Gym. He was told on telephone by the inlaws of Shalini that Shalini had consumed poison and she had been referred to Solan. He came to know that Shalini had been referred to PGI, Chandigarh. Sanju younger brother of Anil told that Shalini had expired, on this complainant went to Chandigarh. 24. Ex.PZ-I FSL report indicates presence of phosphide in the viscera, liver, spleen and kidney. Ex.PZ-II FSL report indicates presence of phosphide in the blood and vomit contents of deceased. Ex.PZ-VI is the opinion of Additional Professor and Head, Department of Forensic Medicine, PGI, Chandigarh indicating cause of death of Shalini due to engestion of phosphide poisoning. There is no dispute that Shalini committed suicide but the question is whether 12 respondent No.1 has abetted the suicide of Shalini and he has committed offence punishable under Section 306 IPC. 25. It has come on record that Shalini got married with respondent No.1 on 21.7.2003 without the consent of her parents. It has also come on record that deceased had been living with her husband at Sanawar. The father-in-law of the deceased was also living at Sanawar till he retired on 31.3.2005. It has also come on record that several relatives of deceased Shalini were also residing nearby. The defence of respondent No.1 which emerges from the cross-examination of the various prosecution witnesses is that since Shalini had performed love marriage with respondent No.1 without the consent of her parents, she was socially boycotted by her parents. Shalini had sensitive nature, due to conduct, behaviour of her parents, she was depressed and for this reason she ended her life. The defence is that respondent No.1 loved Shalini deeply, he did his best to save Shalini when she consumed poison but despite best efforts, she could not be saved and she died on 18/19.4.2005 at Chandigarh. 26. The defence of respondent No.1 appears to be probable. The marriage of Shalini was performed on 21.7.2003 at Solan. It appears PW-1 had first meeting with Shalini after her marriage on 19.2.2004 in her in-laws house at village Pariyal and she told him that she had solemnized the marriage with respondent No.1. PW-1 came to know that his daughter consumed poison on 18.4.2005 and was referred to Chandigarh. PW-1 is resident of 13 Rabon, Solan. But despite knowledge that his daughter has consumed poison, PW-1 did not go to Chandigarh to attend his daughter. Shalini died at PGI, Chandigarh and perhaps this compelled PW-1 to visit Chandigarh on next day where he got recorded statement Ex.PA under Section 154 Cr.P.C. The conduct of PW-1 indicates that he was not at all happy with the marriage of Shalini with respondent No.1 and, therefore, even when his daughter was struggling for life at PGI, Chandigarh, he did not spare time to visit Chandigarh at the crucial time. 27. This apart, the prosecution case against respondent No.1 is that he had been demanding Qualis vehicle, money and giving beatings to Shalini for not arranging vehicle and money from her parents. The prosecution has not proved this part of the case. In so far allegations of beatings is there, the prosecution has not led any direct evidence. The alleged telephonic call of Shalini from her husband’s sister house in Shimla alleging cruelty attributed to respondent No.1 has not been proved. PW-1 in his cross- examination could not firmly say that no sister of her husband has house at Shimla with telephone facility. He could not even give telephone number of her husband’s sister installed at Shimla. The alleged demand of Qualis vehicle by respondent No.1 has not been proved. There are general allegations regarding demand of Qualis, money and beatings but before the occurrence no report to the lawful authorities to this effect at the instance of Shalini or anybody else before the death of Shalini has been proved on record. 14 28. PW-2 has not stated that respondent No.1 had been asking deceased Shalini to arrange Qualis vehicle. PW-2 has admitted that Shalini was sensitive. She has also admitted that respondent No.1 took immediate steps for her treatment and respondent No.1 performed all rituals of deceased after death. PW-2 has also admitted that one STD booth was opened in the name of deceased at Sanawar. PW-16 ASI Parkash Chand has stated that deceased was earning from STD booth about ` 250/- per day. PW-16 has also stated that police did not receive any complaint about the strained relationship of respondent No.1 and deceased nor in the statements of Roop Lal and Jia immediate neighbours of respondent No.1 it has come that respondent No.1 was ill-treating the deceased. 29. It has come in the statement of PW-16 that respondent No.1 had gone to nearby temple when the deceased took poisonous tablets. PW-14 H.C. Bharat Singh has stated that he lifted the contents of vomits of deceased from the spot. He has stated that respondent No.1 tried to save the deceased by giving her salty water so that she might vomit. PW-3 Satya Devi has stated that on 2.12.2004 deceased came to her residence and was weeping. Roop Lal told that deceased was being beaten by respondent No.1. This has been contradicted by PW-16 ASI Parkash Chand, who has stated that it has come in his investigation that Roop Lal and another neighbour Jia did not see any quarrel between deceased and respondent No.1. PW-3 is a close relative of deceased Shalini but 15 surprisingly in her cross-examination, she has stated that she did not enquire from respondent No.1 as to why he used to torture the deceased. She even has gone to the extent that she did not talk to him regarding the relations. PW-2 has stated that so long the father- in-law of the deceased remained at Sanawar, the deceased and respondent No.1 were happy. After his retirement, the problem of demanding money etc. cropped up between the deceased and respondent No.1. The father-in-law of Shalini retired on 31.3.2005 according to PW-16. Thus till March, 2005 virtually there was no problem. 30. The prosecution has examined PW-1, PW-2 and PW-3 regarding the alleged misconduct of respondent No.1. These witnesses are interested witnesses. PW-1 has made several improvements, deviations in his statement in the Court compared to his statement Ex.PA under Section 154 Cr.P.C. The prosecution has not examined any independent witnesses to prove the guilt. PW-1, PW-2 and PW-3 were not in favour of marriage of Shalini with respondent No.1. In their statements they have not stated that at any point of time after the marriage of Shalini with respondent No.1, they took any steps for patching up the matter between Shalini and respondent No.1. It has come on record that Shalini was sensitive in nature. 31. In Chitresh Kumar Chopra vs. State (Govt. of NCT of Delhi) (2009) 16 SCC 605 the Court dealt with the dictionary meaning of the words “instigation” and “goading”. The Court opined 16 that there should be intention to provoke, incite or encourage the doing of an act by the latter. Each person’s suicidability pattern depends on his inner subjective experience of mental pain, fear and loss of self-respect. 32. In S.S. Chheena vs. Vijay Kumar Mahajan and another (2010) 12 SCC 190 it has been held that 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. 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 that act must have been intended to push the deceased into such a position that he committed suicide. 33. The prosecution evidence led in the present case is of general nature. It doesn’t prove the case against respondent No.1. The Additional Sessions Judge has rightly appreciated the material on record and acquitted respondent No.1. The State has also accepted the decision of Additional Sessions Judge. The complainant has filed the revision against the impugned judgment. In revision the scope is very limited and re-appreciation of evidence is not permissible but in order to satisfy the propriety and legality of the impugned judgment, I have again considered