1 HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.Appeal No.210 of 2000 Decided on: November 18, 2010. State of H.P. …Appellant. VERSUS Nain Sukh ….Respondent. Coram The Hon’ble Mr. Justice R.B.Misra, Judge. The Hon’ble Mr. Justice Surinder Singh, Judge. Whether approved for reporting? Yes. For the Appellant: Mr.R.K. Sharma, Sr. Additional Advocate General For the respondent: Mr. Varinder S. Rathore, Advocate Amicus Curiae. Surinder Singh, Judge (Oral) The appellant has challenged the acquittal of respondent passed on 18.6.1999, by the learned Additional Sessions Judge, Shimla, H.P, in Sessions Trial No. 2-S/7 of 1997, whereby he has been acquitted for the offences, punishable under Sections 497/306/506 of the Indian Penal Code. 2. Mr. B.R. Bhandari was the counsel for the respondent, but he did not put in appearance, as such, we 2 appoint Sh. Varinder S. Rathore, Advocate as ‘Amicus Curiae’ to assist this Court. 3. In short, the prosecution story can be stated thus. The respondent was employed as a carpenter by the complainant Devi Dass (PW-1) to undertake carpentry wood work in his house. On 21.5.1996 in the morning, as usual, he left for village Chowkiya to attend his work. While on his way, he felt some pain in his stomach. Thus he decided to return to his house. When he was passing through bushes near his house, he overheard some conversation of a male and a female. In order to find out as to who were they, he went near the bushes, to his utmost surprise, he found his wife and the respondent in a compromising position indulging into sex. He tried to catch hold the respondent, but he managed to escape from the spot and threatened him with dire consequences. In the meanwhile, his wife also fled away from the spot. Complainant found a pullover Ex P-1, glasses Ex P-2, pencil Ex P-3 and Comb Ex P-4 of the respondent, lying on the spot. On reaching home, he did not find his wife there thus he went in search of her, but she could not locate anywhere. Next day, around 2.00 PM, he noticed the dead body of his wife hanging on an oak tree. He informed 3 Durga Dass, Ex Member Gram Pachayat and also Guman Singh about the incident. Many villagers gathered on the spot. The police was also informed. Report was lodged in the Rojnamcha ( Ex PW-7/A). Police reached the spot around 6.15 PM. 4. On the application Ex PW-1/A of the complainant, FIR Ex PW-6/A was formally recorded under Section 497,306 and 506 of Indian Penal Code. The photograph (PW-5/B) of the dead body, showing the dead body hanging on oak tree, was taken. Thereafter, it was taken and laid on the ground. Again photograph Exts PW- 5/A and PW-5/C were taken. Police also filled in the inquest papers Ex PW-11/B and prepared the site plan Ex PW-12/A with respect to the site of the incident. Thereafter, the dead body was subjected to the postmortem. Report is Ex PW-11/A. Ligature marks were found around the neck In the opinion of the doctor, the cause of death in all probability was ante mortem hanging causing asphyxia. 5. After recording the statements of the witnesses and on completing the investigation, challan was presented, in the court for the trial of the respondent for the offences aforesaid. Respondent was charge sheeted, but he adjured his guilt. 4 6. To prove its case, the prosecution examined the complainant and other witnesses. Respondent was also examined under section 313 of the Code of Criminal Procedure. He denied the circumstances found attendant. The stand taken up by the respondent was that it was a false case against him. He maintained his innocence. At the end of trial, respondent was acquitted, precisely on the ground that no evidence with respect to the abetment came forth to prove the offence under section 306 IPC and for the offence under section 497 IPC, his sole testimony could not be believed. 7. Mr. R.K. Sharma, learned Senior Additional Advocate General for the State forcefully argued that the learned trial court did not appreciate the evidence of the prosecution in right perspective and the reasons for acquittal are not borne out from the record. 8. Contra, Mr. Varinder S. Rathore, Advocate, Amicus Curiae supported the impugned judgment of acquittal. 9. We have given our thoughtful consideration to the rival contentions of the parties and have carefully reappraised the evidence on record. 5 10. Although precisely, PW-1 Devi Dass, the complainant, husband of the deceased stated that he caught the respondent and his wife red handed, having indulged into the sexual activity behind the bushes and he tried to apprehend the respondent, but he fled away from the place and could not be caught. Even his wife also escaped from the spot, thereafter she was not traced. It was only the next day her dead body was found in the jungle hanging on an Oak tree. 11. PW-2 Sant Ram stated that on the day of the alleged occurrence, he came across complainant alleged to be running after the respondent, next day, the dead body of his wife was found handing on a tree. PW-3 Durga Dass also stated that he was informed by the complainant that he had seen the respondent and his wife indulging into sex behind the bushes next day she was found dead in the jungle. 12. PW-11 Dr. Vijay Thakur had conducted the post mortem of the dead body, issued report Ex PW-11/A. PW-12 is Ram Chander, Sub Inspector, who investigated the case and took into possession the pullover, glasses, pencil and comb which are alleged to have belonged to the respondent particularly. Respondent did not claim the 6 ownership of the aforesaid articles nor it is connected in any way with him. 13. It is a settled law that if any person instigate any person to commit suicide and as a result of such instigation, the other person commits the suicide, the person causing the instigation is liable to be punished under Section 306 of I.P.C abetting committing of the suicide. 14. In the instant case, there is no iota of evidence to link the respondent with the abetment to commit suicide by the wife of the deceased. Therefore, in our considered opinion, the offence under section 306 of IPC is not legally established against the respondent. Further, insofar as the offence under section 506 IPC is concerned, there is also no legal evidence worth inspiring confidence. 15. With respect to the offence punishable under section 497 of IPC, there is only self serving statement of the complainant which is not finding any corroboration from any independent source, except the statements of PW-2 and PW-3 aforesaid who stated to them that he found the deceased and the respondent in a compromising position as aforesaid. It is not understood when the complainant has left the house leaving his wife alone in the house, why 7 she and the respondent decided to have sex outside behind the bushes in a broad-day light. Further in order to find out the truthfulness of the version of the complainant, we also looked into the post mortem report, but there is no reference as far as the genital organs of the deceased are concerned suggesting even remotely that she had a sex with respondent. The wearing apparels of the deceased were not sent to forensic examination which could have afforded some corroboration. In absence of this, no implicit reliance can be placed upon the sole testimony of the complainant. 16. On the reappraisal of the evidence led by the prosecution on record in view of the explanation rendered by the respondent in his statement under section 313 Cr.P.C, we do not find that the prosecution was able to prove the case against the respondent beyond a reasonable doubt. As such, the respondent was rightly held entitled for the benefit of doubt, by the learned trial court and we find that the findings of acquittal are borne out from the record which requires no interference. Hence, the appeal is dismissed being without merit. 8 17. The respondent is discharged of his bail bonds entered by him at any time during the proceedings of this case. Send down the records. (R.B.Misra), J. November 18, 2010 (Surinder Singh),J. (sl)