--------------------------------------------------------------------------------------- Whether reporters of the Local papers are allowed to see the judgment? IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA. Cr.A. No.39 of 2005. Decided on: December 26, 2011. Rajinder Singh s/o Shri Prithi Singh, r/o Bhanota Pargna Udaipur, Tehsil and District Chamba, H.P.. …… Appellant. Versus State of Himachal Pradesh. …….Respondent. Criminal Appeal under Section 374 read with Section 482 Cr.P.C. against the judgment of conviction and sentence passed by Ld. Addl. Sessions Judge (FTC) Chamba, H.P. in Sessions Trial No.46/04/03 dated 12/13.1.2005. Coram Hon’ble Mr. Justice Surinder Singh, J. Whether approved for reporting? Yes For the appellant : Mr. I.D. Bali, Sr. Advocate duly assisted by Sh. Virender Bali & Sh. K.G. Sharma, Advocate. For the respondent : Mr. A.K. Bansal, Addl. Advocate General. Surinder Singh, J (oral): The appellant has laid challenge to his conviction and sentence passed by the learned trial Court in Sessions Trial No.46/04/03 decided on 12/13.1.2005, for the offence punishable under Section 306 of the Indian Penal Code, - 2 - whereby, the appellant was sentenced to undergo rigorous imprisonment for a period of three years and to pay fine of Rs.5,000/- with default clause. 2. In short, the prosecution story can be stated thus. The admitted facts of the case are that the deceased Darshna was married to the appellant, hereinafter referred to as “the accused” on 26.11.2000 and she committed suicide on 31.7.2002 by consuming aluminium phosphate, an insecticide. (ii) As per the case of the prosecution, respondent had been imputed the allegation of infidelity against the deceased, thus having been fed-up with such allegations, she committed suicide. (iii) It is alleged that after consuming poison, she was immediately removed to the hospital where she was attended upon by PW7 Dr.V.K. Pathak. At that time she was in a semi-conscious condition, but not responding to the verbal commands. Doctor preserved gastric lavage and stomach washings and issued MLC Ext.PW7/A. But, despite treatment, she could not survive and ultimately died. (iv) Police as well as parents of the deceased were already informed. - 3 - (v) On the request of the police, PW8 Dr. V.D. Dogra performed the autopsy of the dead-body. Viscera was sent for the forensic examination. As per the report, the contents of aluminium phosphate were detected and the doctor opined that she died because of consumption of the aforesaid poison. (vi) PW1 Hem Singh, brother of the deceased thereafter got recorded his statement Ext. PA under Section 154 of the Code of Criminal Procedure against the accused, on the allegations that after the marriage, deceased had visited her parental house three times and she alleged that the accused had been levelling the allegation of bad character and he used to beat her after consuming liquor. (vii) The rukka was sent for the registration of the case, which culminated into present FIR under Sections 498-A and 306 of the Indian Penal Code. Police recorded statements of the witnesses and after completing the investigation, challan was presented for the trial of the accused for the aforesaid offences in the Court. (viii) Accused was accordingly charge-sheeted, to which he pleaded not guilty and claimed trial. - 4 - (ix) To prove its case, prosecution examined its witnesses and the accused was also examined under Section 313 of the Code of Criminal Procedure. He denied the allegations against him and pleaded innocence. When called upon the enter into his defence, he examined DW1 Suresh Kumar of his village whose house is located adjacent to the house of the accused. He stated that both the deceased and the accused were living peacefully in their house. He did not notice any quarrel between them. 3. At the end of trial, learned trial Court did not find any evidence of cruelty, as such accused was acquitted for the offence under Section 498-A of the Indian Penal Code, but however on the statement of the witnesses the learned trial Court came to the conclusion that the accused had abetted the offence of suicide, as such convicted and sentenced him as aforesaid, hence the present appeal. 4. Shri I.D. Bali, learned Senior Advocate, duly assisted by Shri Virender Bali and Shri K.G. Sharma, Advocates, vehemently argued that there is no consistency in the statements of the prosecution witnesses. Further that they - 5 - stood contradicted with their statements recorded under Section 161 Cr.P.C. It is also submitted that the material improvements made in their statements, all the more make the case of the prosecution a suspect. It is also argued that no evidence has come forth that in the close proximity of suicide, there was some cause attributable to the accused to prompt her to commit suicide. 5. Shri A. K. Bansal, learned Additional Advocate General supported the judgment of conviction and sentence of the accused. He forcefully argued that the father, brother and brother-in-law of the deceased have supported the prosecution case. Though their versions were slightly different, but if taken as a whole keeping in view the fact that the deceased had committed suicide within less than two years of her marriage, vis-à-vis the allegation of infidelity attributed to her, has served the abetment to prove the offence under Section 306 of the Indian Penal Code with the aid of the provision of Section 113-A of the Indian Evidence Act. 6. I have given my thoughtful consideration to the rival contentions of the parties and have carefully, cautiously and meticulously reappraised the evidence on record. - 6 - 7. Section 306 of the Indian Penal Code requires the twin proof:- (a) commission of suicide; and (b) its abetment by such commission of suicide. 8. Section 113-A of the Indian Evidence Act raises a presumption as to abetment of suicide by a married woman. It reads as under:- “113A. Presumption as to abetment of suicide by a married woman- When the question is whether the commission of suicide by a woman had been abetted by her husband or any relative of her husband and it is shown that she had committed suicide within a period of seven years from the date of her marriage and that her husband or such relative of her husband had subjected her to cruelty, the Court may presume having regard to all the other circumstances of the case, that such suicide had been abetted by her husband or by such relative of her husband. Explanation- For the purposes of this section, “cruelty” shall have the same meaning as in Section 498A of the Indian Penal Code ( 45 of 1850).” 9. In M. Mohan vs. State 2011 Cr. L. J. 1900, the apex court held that the abetment involves a mental process of instigating a person or intentionally aiding a person in doing a thing. Thus without a positive act on the part of the accused to instigate or aid in committing suicide, conviction cannot be sustained. In other words, clear - 7 - mensrea has to be there. It also requires an active act or direct act which led the deceased to commit suicide seeing no option and this act must have been intended to push the deceased into such a position that he/she commits suicide. 10. In the instant case, the statements of all the prosecution witnesses are either contradictory to each other or improved their versions considerably. PW1 Hem Singh brother of the deceased stated that the deceased after the marriage had visited alongwith her husband three times in the parental house and during this time, she allegedly disclosed him that she had been beaten frequently because he doubted her character. Pertinently in cross-examination, he stated that this complaint was not made to him by the deceased, even accused is stated to have denied this fact He also stated that he got recorded this fact to the police in his statement, but when confronted with his statement Ext.PA, recorded under Section 154 Cr.P.C., this fact was not found mentioned. He also stated that he did not make any complaint to the police or the Panchayat. He further stated about her visits that second visit of the deceased to the house of her - 8 - parents was after one and half month of her marriage and third t about 20-25 days thereafter. 11. PW2 Rumal Singh is brother-in-law of the deceased. Though he stated that the deceased had been making complainants against the accused regarding doubting her character, significantly, in his cross-examination, he stated that she did not personally make any complaint to him about this fact or with respect to any misbehaviour, but she told to his wife. The wife of PW2 Rumal Singh was not examined to lend strength to his version. He stated that he told the police with the allegation that the accused was insisting upon the deceased to divorce him, lest she would commit suicide. This was never the case of the prosecution, but when he was confronted with his statement recorded by the police under Section 161 Cr.P.C, this fact was not even found mentioned therein. 12. PW3 Nainsukh is the father of the deceased. He also confirmed the fact of the visit of the deceased three time in his house but he made another story that she used to complain about having been given beatings to her under the influence of liquor. He also gave a fleeting reference that the deceased doubted her character, but according to him, he did not make any complaint about the alleged torture - 9 - or false allegation to the Police or Panchayat. He further stated that the deceased never came alone to his house and all the times accused was with her and both had been returning together to their house. 13. Deceased was the niece of PW9 Hardei. She stated that the deceased had been making complaints to her that the accused used to harass and ill-treat her. She further introduced another story that accused used to tell her that he would kill her or commit suicide. In cross- examination, she stated that the reasons for doing so was that the accused had been raising unlawful demands of money, but when confronted with her statement recorded under Section 161 Cr.P.C., this fact was also not found mentioned therein. She also stated that she heard only about the beatings having been given by the accused to the deceased from her parents. 14. On the close scrutiny of the aforesaid evidence, I do not find any consistency in the statements of the witnesses nor any active or direct part of the accused which led the accused to commit suicide. The prejudice, which appears to have nurtured against the accused is only after the death of Darshana. - 10 - 15. Thus on the aforesaid evidence, the conviction of the accused for the offence punishable under Section 306 of the Indian Penal Code cannot be sustained, as such, impugned judgment of conviction and sentence is hereby set-aside. Consequently, the appeal is allowed and the appellant is hereby acquitted for the offences charged. 16. The bail bonds executed by the accused at any time during the proceedings of the case are hereby discharged. The fine amount, if any, deposited, be refunded to the accused. Send down the records. (Surinder Singh ) Judge December 26, 2011. (Pds)