IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 161 of 2009. Judgment reserved on: 19.10.2010. Decided on: December 01, 2010. ___________________________________________________________ Rakesh Kumar and another. …. Appellants. Versus State of Himachal Pradesh. ….. Respondent. Coram Hon’ble Mr. Justice Surinder Singh, J. Whether approved for reporting1? Yes. For the appellants : Mr. Ashwani K, Sharma, Advocate. For the respondent : Mr. A.K.Bansal, Addl. Advocate General. _______________________________________________________ SURINDER SINGH,J : 1. The present appeal has been directed by the appellants against their conviction and sentence passed in Sessions Trial No.20-K/VII of 2008 decided on 23rd May, 2009, whereby each of the appellants i.e. the husband and mother in law of the deceased were sentenced to simple imprisonment for a period of seven years and to pay a fine of `15,000/- under Section 306 of the Indian Penal Code and also for a period of three years and fine Whether reporters of the Local papers are allowed to see the judgment? - 2 - of `10,000/- under Section 498-A of the Indian Penal Code with default clauses by the learned Sessions Judge. However, both the sentences were ordered to run concurrently. 2. In nutshell, the prosecution case can be stated thus. (i) PW3 Jugal Kishore is father of deceased Monika Devi. Deceased was married to appellant No.1 Rakesh Kumar, resident of village Kachhiari, Tehsil and District Kangra on 29th September, 2006. After marriage, the deceased was kept well for sometime, but when she gave birth to a female child on 14.11.2007 through a cesarean operation, the attitude of the appellant Rakesh and his family members became altogether different and they subjected her with cruelty. PW3 Jugal Kishore alleged that once she made a complaint to him using her mobile phone that her in-laws were not treating her well and they made her life miserable. Thereafter the said phone was snatched by her sister-in- law Shama Devi. - 3 - (ii) On 11.12.2007 at about 11.45 a.m., appellant Rakesh Kumar informed telephonically his father-in-law (PW3) that he was not interested to keep the deceased, therefore, he should take her to her parental home. On this, PW3 aforesaid went to the house of in- laws of his daughter, alongwith his wife PW4 Sunita Devi, PW5 Shashi Kumar and his wife and also PW6 Ajay Kumar. She complained them that her husband and other family members had given her beatings. She was weeping. Seeing her pitiable condition, PW3 decided to take her along, but Shri Om Parkash her father-in-law impressed upon them that it was ‘Tuesday’ on that day, which is not considered to be auspicious, thus he would leave her himself next day. On this, they left the place. Next day he left her at her parental house and allegedly informed PW4 Sunita Kumari her mother that her daughter was of no use to them. (iii) On 17.12.2007, at 12 noon, deceased Monika Devi telephonically informed her - 4 - father (PW3), who had gone out for work somewhere that her husband appellant Rakesh Kumar informed her telephonically that he was not ready to keep her any more and he treated her as dead for him, thus, she consumed some pesticide. On receiving this information, PW3 immediately rushed to his house, where he found his daughter in a semi-conscious condition. She pointed out a paper having been kept by her under the Mobile in her writing. Her condition started deteriorating. He immediately took her to Medical College and Hospital, Tanda, with the assistance of his wife and PW10 Yog Raj Pradhan. She was admitted in the hospital. (iv) PW1 Dr. V.D. Dogra, medically examined the deceased and provided her first aid. The doctor on her clinical examination found that blood pressure was not recordable. She was gasping, there was no response to verbal commands. She was semi-conscious at that time. The doctor handed over the gastic lavage to the police for chemical - 5 - analysis in a sealed bottle. She was suspected to have consumed aluminum phosphide a poisonous substance. He issued MLC Ex.PW1/A on the application of police Ex.PW1/B. He had made best efforts to save Monika Devi but of no avail. Ultimately, she died. He had reported the matter to the police. (v) The Investigating Officer PW9 Inspector SHO Surinder Sharma, reached the hospital and recorded the statement of her father Jugal Kishore under Section 154 Cr.P.C. which was forwarded to Police Station for formal registration of the FIR Ex.PW9/B. During investigation, he took the dead body in possession and filled in the inquest papers Exts.PW3/B and C. Suicide-note Ex.PW3/D kept under mobile by the deceased was taken into possession by police and writings of deceased Ex.PW3/G were taken into possession vide memo Ex.PW3/F. He also took into possession, note- books Exts.PW9/G and H, wherein there was admitted - 6 - handwriting of deceased Monika, vide memo Ex.PW9/J. (vi) Viscera was sent for chemical examination. Report of Chemical Examination is Ex.PX. It confirmed the contents of above referred position. (vii) PW2 Dr. Rajesh Kumar conducted the postmortem of deceased. He on the basis of chemical report Ex.PX, opined that the cause of death was poisoning as a result of consumption of phosphide poison. The probable time between death and the post mortem was 24 hours. He issued post mortem report Ex.PW2/A. 3. On the completion of the investigation, the challan was presented in the Court, for the trial of Rakesh Kumar, his mother Kamla Devi (appellants), father Om Parkash and sister Shama Devi, accused persons. 4. Finding a prima-facie case under the aforesaid sections, all the above four accused persons were accordingly charge-sheeted, to which they pleaded not guilty and claimed trial. - 7 - 5. To prove its case, prosecution examined its witnesses and the appellants and their co-accused were also examined under Section 313 of the Code of Criminal Procedure. The circumstances, which were found attendant upon were put to them, to which they denied. However, all of them pleaded their innocence and submitted that a conspiracy was hatched against them by the father of the deceased and the police to implicate them in a false case, whereas it was her father (PW3) who used to harass and beat her. There have been quarrels between the father and the daughter and even on the day of Deepawali, her father gave beatings to her. 6. When called upon to enter into his defence, the appellants examined DW1Bipin Kumar. He testified that accused Shama Kumari was a student of 10th standard in Government Senior Secondary School Kachhiari and on 11.12.2007, she was present in the school throughout the day. He produced the extract of the attendance register Ex.DW1/A. - 8 - 7. DW2 Bal Krishan is the neighbour of the appellant party. He stated that he knew the deceased and the appellants. They never ill- treated or mal-treated her. Occasionally her father used to visit her and after giving birth to a female child the deceased went to her parental house on the occasion of Bhaiya Dooj but returned early in the morning. On having been asked by them, she disclosed that her father had misbehaved with her. 8. At the end of trial, believing the version of the prosecution witnesses, though acquitted Om Parkash and his daughter Shama Devi, by giving them the benefit of reasonable doubt, but convicted and sentenced the appellants Rakesh Kumar and his mother Kamla Devi for subjecting deceased Monika Devi to cruelty and also held that they abetted the commission of her suicide by her. Thus they challenged their conviction and sentence in this appeal. 9. Shri Ashwani Kumar Sharma, learned counsel for the appellants vehemently argued that her parents admitted that the appellants had maintained their daughter well initially for a period - 9 - of one year but the allegation that after delivering a female child, she was treated with cruelty is without any basis and there is no legal evidence. He has further argued that the so-called suicide note was not proved to be in her own hand. At the time of her death, she was in the house of her parents. There has been allegation against her father that she was not treated well by him at earlier occasion also, therefore, the possibility of abetment of suicide by him cannot be ruled out. He further argued that the suicide note aforesaid also did not prove the ingredients of offences charged. He further argued that the prosecution also failed to prove any telephone conversion on the day of alleged occurrence having been taken place with her and her husband as alleged. The phone call details were not obtained. Therefore, in absence thereof the prosecution story remains unsubstantiated and the statements of her parents with respect to cruelty are tainted version. 10. Contra, Shri A.K.Bansal, learned Additional Advocate General supported the impugned judgment of conviction and sentence. He forcefully - 10 - argued that the prosecutrix in the instant case has been proved to be subjected to cruelty and abetted the commission of suicide by the deceased. Therefore, no interference in appeal is called for. 11. I have given my thoughtful consideration to the rival contentions of the parties and have closely and carefully reappraised the evidence on record. 12. Deceased Monika committed suicide in the house of her parents. She was married to the appellant Rakesh Kumar on 29th September, 2006 in village Kachhiari. On 14th November, 2007, she delivered a female child in the hospital at Kangra by cesarean. Partly the payment was made by her father PW3 Jugal Kishore and partly by her husband. PW3 Jugal Kishore stated that after giving birth to the female child, the behavior of the appellant became indifferent as they wanted and expected a son. It was alleged that a ‘Chela’ told them that she would bear a son and made allegation that the deceased had committed wrong by giving birth to a daughter. After the cesarean operation, she was taken to their house - 11 - by the appellants, where she was treated with cruelty. Even her mobile phone was snatched and her life was made miserable saying that she was of no use to them and also alleged that by the said operation, she was made unfertile. This information was passed on, by her, to her parents, which resulted into snatching of her mobile phone. All this had happened prior to 11.12.2007. He further stated that on the same day, around 11.45 a.m., he was informed by the appellant Rakesh Kumar that the deceased was of no use to him and he was asked to take her to his house. He heard his daughter crying. Then he rushed to his house from the work place and took his wife alongwith him duly accompanied by Ajay Kumar and visited her matrimonial house. They found that deceased was in tears, who had complained that she was given beatings without any rhyme and reason. Even her husband had given a slap to her. After consulting his wife and the persons accompanying him, they decided to take her to his house as her life was in danger. He further stated that Om Parkash, father- in-law of the deceased told them to take her next - 12 - day as it happened to be Tuesday of week on that day, which was not good. He also assured her to leave her in the parental house next day himself, to which he did. On 17.12.2007, he was away to his work and his wife and the deceased were in the house. At about 11.45 a.m., his wife left the place to wash the clothes of her daughter and around 12 noon, deceased told him on phone that she received a telephonic call from her husband- appellant stating that he is not ready to keep her in any circumstance and she was considered as dead and then she consumed poison and informed her mother to take care of her minor daughter. On getting this information, he rushed to his house. His daughter was in senses at that time and in a position to speak. But, she is alleged to have pointed out a paper kept under the mobile phone. Her condition started deteriorating. She was taken to medical college Tanda, accompanied by his wife. She was admitted in the hospital. The efforts were made to save her, but ultimately, she died and the matter was reported to the police. His (PW3) statement Ex.PW3/A was recorded around 6 - 13 - p.m. Police took the dead body into possession and completed the inquest papers. He further stated that his daughter had passed 10+2 and could identify her handwriting. He handed over a suicidal note Ex.PW3/D to the police, which was written with a lip liner. He also admitted his son visited his daughter 2-3 times for supplying the milk. He denied that he was torturing his daughter at many occasions. Though voluntarily stated that on the day when his wife had picked up a quarrel, he had slapped her. He also denied that he was a short tempered person and he had been given beatings to his wife and children off and on. He had denied that a suicidal note aforesaid was not written by his daughter and was not in a position to identify her handwriting. 13. PW4 Sunita Devi his wife stated that the deceased was treated by the appellants with cruelty for begetting a daughter instead of delivering a son. She also made a similar statement as that of her husband and also stated that finding such conduct of the appellants, they decided to take their daughter to their house and Om Parkash - 14 - dropped her their next day. She further stated that on 17.12.2007, she was present in the house. Her deceased daughter was also with her. She left for some work. When she returned during noon at about 12.00, at that time, she was lying on the bed outside in the sun and asked her to go inside as it was too hot, but in turn, she told that she had received a telephonic call from her husband. He informed her that she was of no use to him and she was free to die and their relationship as husband and wife had snapped and further informed that she had consumed pesticide and told her to take care of her daughter. She informed her husband telephonically. He came to his house, to whom she pointed out a paper lying below the telephone. Her condition started deteriorating. She was taken to the hospital, where she died and suicidal note was handed over to the police. She admitted that her daughter had visited their house after one month of the delivery where she was dropped by her father- in-law and before that she had been living with her husband. She also stated that at the time of delivery, the doctor informed that either mother or - 15 - child could die and admitted that at such stage, her husband was in tears and she was also weeping and had prayed for the safety of her daughter and the child. 14. PW5 Shashi Kumar corroborated their version that he had accompanied the parents of the deceased to her matrimonial house. The appellant is stated to have slapped her in their presence. They intended to take her same day to the parental house, but on the intervention of Om Parkash, she was dropped next day. This fact was also corroborated by PW6 Ajay Kumar. 15. PW9 Inspector Surinder Sharma had admitted having taken over the suicidal note Ex.PW3/D produced by father of the deceased and also admitted the handwriting on the exercise book, which were sent for the comparison to the handwriting expert. 16. PW12 Dr. Meenakshi Mahajan is Assistant Director, State Forensic Science Laboratory, Himachal Pradesh and according to her, it was one and the same person, whose hand-writing appeared to be on the suicidal note. - 16 - 17. The perusal of the suicidal note Ex.PW3/D makes a reference that the appellant-husband and her mother-in-law had been torturing her and she had admitted to commit suicide and it was her wish that her daughter be not handed over to them and be kept in the custody of her parents and she also alleged that her husband and mother- in-law caused her murder (hatya), but she did not make any reference to the telephonic message received by her husband just before taking the poison. 18. This is only the material evidence led against the appellants, which requires sifting to conclude, if the offences charged are made out against them. 19. First of all, I shall take up the offence under Section 306 of the Indian Penal Code. According to PW3 Jugal Kishore, the behaviour of the appellants became indifferent towards the deceased on the delivery of a female child and he was told by the appellants that a ‘Chela’ had told them that female child had brought ill-luck to them. Secondly, he and his wife PW4 Sunita Devi were told by the deceased that she received a - 17 - telephonic call from her husband aforesaid and she had consumed poison. There is no corroboration to their statements having been told by a Chela that female child had brought ill-luck to them. Further neither the police took into possession the telephonic details of calls of the deceased and her husband, or for that matter their mobile phones to substantiate the plea with respect to receiving the call from her husband which was the proximate cause to commit suicide. 20. The only allegation is about harassment by the appellants, on account of delivery of a female child. If Section 306 IPC and Section 107 IPC are read together, I do not find convincing evidence on record that the appellants had made the life of the deceased so intolerable by constant spurring /goading her to commit suicide. Even in the alleged suicide note, there was no reference of any act or incident whereby the appellants were alleged to have committed any artful act or omission or intentionally aided or instigated the deceased to have committing suicide. - 18 - 21. In Mahendra Singh & Anr. vs. State of M.P. [1995 Suppl.(3) SCC 731], it was observed by the apex Court that it is a common knowledge that the words uttered in a quarrel or in the spur of moment or in anger cannot be treated as constituting mens rea. In that case, appellant said to the deceased “to go and die”. As a result of such utterance, the deceased went and committed suicide. The Supreme Court observed that no offence under Section 306 IPC read with Section 107 IPC was made out because there was no element of mens rea. 22. In Randhir Singh & Anr. vs. State of Punjab [2004 (4) RCR (Criminal) 740], the apex Court observed that “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”. It was further 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 - 19 - meted out to the victim had in fact induced her to end the life by committing suicide. If it transpires to the courts that a victim committing suicide was hyper sensitive to ordinary petulance, discord and differences in domestic life quite common to 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 for abetting of the offence of suicide should be held guilty.” 23. In my opinion, the facts alleged to prove the offence under Section 306 of the Indian Penal Code are quite insufficient and the alleged suicide note even if proved to be in her hand does not show the immediate cause or instigation by the appellants to end her life. While staying in the house of her parents, something must have happened which remained not proved or unexplained, when she decided to commit suicide. - 20 - This also shows her hyper sensitivity. Even her father has also been proved to be short-tempered. In view of the above situation, offence under Section 306 of the Indian Penal Code is not made out against the appellants. 24. Insofar as the offence of cruelty punishable under Section 498-A of the Indian Penal Code is concerned, the prosecution witnesses discussed above clearly state that the behaviour of her husband became indifferent towards his wife on the delivery of the female child. The prosecution witnesses are categoric in their said statements. Even when the parents of the deceased had visited her in the matrimonial house, she was weeping and even her husband is alleged to have slapped her in their presence. The ill-treating her for her any alleged mistake, which could have otherwise pardonable and then turning her out from the house for none of her fault for delivering the female child does amount the cruelty within the meaning of Section 498-A of the Indian Penal Code. She has also referred particularly her husband for the ill- treatment meted to her. Though a reference has - 21 - been made to the mother-in-law, but except this there is no cogent and convincing evidence that she was also mal-treating and torturing her. She in fact was living separately from her appellant son and the deceased. There was no cause for her to torture her for anything or in any manner. 25. In the instant case, although the case and effect relationship between the cruelty and suicide was also not established for drawing presumption under Section 113-A, but it stands proved beyond reasonable doubt that her husband Rakesh Kumar was only responsible for the offence of “cruelty”. The prosecution evidence to this extent inspires confidence, whereas, on the facts adduced on the record, appellant Kamla Devi deserves to be acquitted by giving her benefit of doubt. 26. For the afore stated reason, the judgment of conviction and sentence against Kamla Devi for the offences punishable under Sections 306 and 498-A Indian Penal Code are set aside. Consequently, she stands acquitted. She be released forthwith, if not required in any other case. Registry of this Court to take immediate steps. - 22 - 27. In so far as appellant Rakesh Kumar is concerned, his conviction and sentence under Section 306 Indian Penal Code is set aside and stands acquitted for the said offence. However, his conviction and sentence under Section 498-A Indian Penal Code, as passed by the learned trial Court is maintained. As such the appeal is partly allowed. 28. The record reveals that convict-appellant Rakesh Kumar was arrested on 17.12.2007, thus, the learned trial Court shall send the amended warrant to the Superintendent of Jail concerned in conformity of this judgment. 29. Send down the records immediately. December 1, 2010. (Surinder Singh), (Pds) Judge.