IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Criminal Appeal No.479-SB of 1997 Date of decision: 6th January, 2010 Raj Pal Bahl and another … Appellants Versus State of Haryana … Respondent CORAM: HON’BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA Present: Mr. R.S. Cheema, Senior Advocate with Ms. Tanu Bedi, Advocate for the appellants. Mr. Deepak Jindal, Deputy Advocate General, Haryana for the State. KANWALJIT SINGH AHLUWALIA, J. The present appeal has been filed by Raj Pal Bahl and his wife Vandana Bahl. They have been convicted by the Court of Sessions Judge, Ambala vide judgment dated 11th June, 1997 for offence under Section 306 IPC for having abetted the suicide of Dr. Komal Bahl wife of Dr. Satya Pal Bahl PW-7. Dr. Satya Pal Bahl PW-7 is elder brother of Raj Pal Bahl. Therefore deceased Dr. Komal Bahl was elder bhabhi (wife of elder brother) of both the accused – appellants. Sessions Judge, Ambala after holding the appellants guilty for offence under Section 306 IPC sentenced them to undergo RI for 10 years and pay a fine of Rs.5000/- and in default of payment of fine to undergo RI for 3 years. In the present appeal, the appellants assail conviction pronounced and sentence awarded by the trial court. Criminal Appeal No.479-SB of 1997 The appellants were named as accused in case FIR No.92 dated 21.05.1993 registered at Police Station Ambala City under Sections 304B/306 IPC. Narender Kumar Arora brother of Dr. Komal Bahl had submitted a typed complaint running into five full scape pages to the Senior Superintendent of Police, Ambala City. This complaint is Ex.PE. On the basis of this formal FIR Ex.PE/1 was registered. The complainant's version and allegations levelled when condensed state that Dr. Komal Bahl who was known as Kailash Rani Arora before marriage was married with Dr. Satya Pal Bahl in November 1979 at Patiala. Dr. Raj Pal Bahl accused younger brother of Dr. Satya Pal Bahl was married with accused Vandana Bahl in 1991 and they were living jointly with deceased. Parents-in-law were also residing with Dr. Komal Bahl deceased who was blessed two children. Daughter Shaveta Bahl aged 12 years and son Sorabh Bahl aged 10 years. Dr. Komal Bahl had set up her clinic in Ambala City after spending about Rs.12 lacs. Deceased intended to set up another clinic at Circular Road, Ambala City which was under construction and she had spent about Rs.20 lacs. Husband of the deceased was student of Post Graduation in Medicine at Rajindra Hospital, Patiala. Another brother of the deceased Dr. Janak Raj Arora was posted as Professor and Head of Paediatric Surgery in Medical College and Hospital at Patiala. Both the accused – appellants were also running their medical practices from the clinic of deceased Dr. Komal Bahl. Accused – appellants had got a son aged 1 year. He was suffering from Thala Cemia Major and the only Curative treatment available to the son of the appellants was Bone Marrow Transplant. The cost of treatment in India was Rs.7 lacs and for getting the treatment abroad Rs.25 lacs were required to be incurred. It is alleged that both the accused were pressurizing Dr. Komal Bahl to pay Rs.7 lacs so that they are able to provide treatment to their son. Deceased had expressed her inability to 2 Criminal Appeal No.479-SB of 1997 arrange such amount. The accused had suggested that deceased should dispose of her clinic at Circular Road, Ambala City which was under construction and the same be mortgaged for arranging Rs.7 lacs required for the treatment of son. Deceased Dr. Komal Bahl was not willing to accept the proposal made by the accused. Twice or thrice she discussed the matter with the complainant who advised her to consult her husband Dr. Satya Pal Bahl. Refusal on the part of the Dr. Komal Bahl sister of the complainant led accused to torture her and they wanted to deprive deceased of her clinic at Vishavkarma Road, Ambala City. The harassment and torture practiced by the accused caused regular tension to the deceased and in the month of May 1993 deceased told the accused not to enter her clinic and make alternative arrangements. On 19.05.1993 an altercation took place between deceased Dr. Komal Bahl and the accused – appellant. Dr. Vandana Bahl occupied the chair of Dr. Komal Bahl forcibly and had not permitted her to sit on her chair. Deceased was harassed and tortured till 2 PM by the accused. She left the clinic at 2.30 PM. She came back to her house and she asked her daughter that in case she died whether she would be able to live with her brother. It is alleged that on 19.05.1993 deceased consumed Aluminium Phosphide. The fact that deceased was harassed was also known to her real uncle Jai Pal who was living in Ambala City. A grievance was made in the complaint that accused were doctors and instead of taking the deceased to Civil Hospital, Ambala or Mission Hospital, Ambala, they took her to PGI, Chandigarh with intention that sufficient time elapse and poisonous tablets are mixed in the blood. Deceased was got admitted in PGI, Chandigarh at 6 PM. According to complaint, this depicted malafide intention on the part of the accused to cause murder of Dr. Komal Bahl. Dr. Komal Bahl died at PGI on 20.05.1993 at 9.30 AM. It is further stated that accused had not informed real uncle Jai Pal who was residing in the near vicinity at Ambala 3 Criminal Appeal No.479-SB of 1997 and had also not informed the complainant and Dr. Janak Raj Arora another brother. However elder brother of the deceased Dr. Janak Raj Arora was informed at 6.45 PM on 19.5.1993. Complainant along with other brothers of the deceased, sisters and father had arranged the cremation and learnt about the details regarding death of Dr. Komal Bahl from the staff and others. Shaveta Bahl daughter of deceased had also stated that deceased had left one letter, when elder brother of the deceased Dr. Janak Raj Arora demanded letter from the accused he was given beating. However, later accused had given photocopy of the letter written in the hands of deceased. However, the original letter was produced by accused before SHO, Police Station, Anaj Mandi, Ambala City. According to the complaint, accused who were doctors, knew well that the pills could be taken out of the stomach by immediate treatment either at their clinic or at Civil Hospital or Mission Hospital or any other Nursing Home at Ambala City. The same was not resorted to and also the relations of the deceased were not informed, therefore, it is a clear case of murder. This complaint was submitted on 21.05.1993 and on the same day case was registered. From the complaint Ex.PE following material facts can be gathered:- a) Deceased was married with the elder brother of the accused in 1979 whereas marriage of the accused took place 12 years later in the year 1991. b) Deceased committed suicide after 14 years of her marriage and was having daughter and son aged 12 years and 10 years respectively. c) That accused who were married in 1991 were having a child aged 1 year born in 1993, who was suffering from Thalacemia and for treatment of Bone Marrow, 4 Criminal Appeal No.479-SB of 1997 Transplant was only remedy and accused were demanding Rs.7 lacs from the deceased who was elder bhabhi (wife of elder brother) of Dr. Raj Pal Bahl. d) They were pressurizing deceased to part Rs.7 lacs and for this to mortgage or sell clinic which was under construction at Circular Road, Ambala City. e) On the refusal of the deceased to pay the amount as demanded by the accused for treatment of their son, she was subjected to harassment and torture. f) On 19.05.1993 an altercation had taken place. Deceased returned to her house and consumed Aluminium Phosphide at 3 PM and was taken from Ambala to Chandigarh at a distance of 50 kms. and she was got admitted at PGI at 6 PM. Deceased died on next day i.e. 20.05.1993 at 9.30 AM. g) Accused were compelled to part with letter written by the deceased. It will be pertinent to reproduce suicide note Ex.PF. "Mein apki M.D. puri na karva saki mafi chahti hun mere ko nahlana nahi hai jo kapde mene paye hai isi se dafna dena. Alvida. Purse me bangle padi hein vo Anila didi ko de dena or Saroj ke bacho ko panch hazar rupya de dena." The same when translated into English, read as under:- "I could not get your MD completed. I apologize. Do not give me bath. I be buried in the clothes which I am wearing. Farewell. In my purse bangles are lying the 5 Criminal Appeal No.479-SB of 1997 same be given to Anila didi. Also give Rs.5000/- to the children of Saroj." The aforesaid FIR was investigated. Suicide note was taken into consideration and report under Section 173 Cr.P.C. was submitted along with the accused. Accused were committed to a Court of Sessions Judge, Ambala who framed charge against the appellants on 23.04.1994. The charge stated that on 19.05.1993, in the area of Ambala City, Dr. Komal Bahl had committed suicide and the accused had abetted its commission by making demands of money from her and also harassing her in that connection. Therefore, they committed offence punishable under Section 306 IPC. The accused pleaded not guilty and claimed trial. In the present case, following question can be formulated for consideration of this Court: "Whether demand of money by one relation from another relation for providing medical treatment to ailing son will constitute abetment to suicide and acts of omission and commission on part of the relation, who demand money, can be construed, to incite, urge, provoke, the victim to commit suicide?” For answering this question, evidence can be briefly recapitulated as under: Dr. S.K. Sharma, Medical Officer, General Hospital, Chandigarh appeared as PW-1. He stated that on 20.05.1993, he conducted the autopsy on the dead body of Dr. Komal Bahl aged 38 years. There was no external injury present on the dead body. There was no 6 Criminal Appeal No.479-SB of 1997 mark of ligature. Viscera was sent to chemical examiner. As per his opinion, the cause of death was Aluminium Phosphide poisoning. Chaudhary Ram Inspector PW-2 submitted report under Section 173 Cr.P.C. Complainant Narender Kumar Arora appeared as PW-3. He reiterated what was stated in the FIR and further deposed that her sister was B.A.M.S. and was having her clinic at Vishkarma Road, Ambala City. She was living peacefully in her house separately at Urban Estate. She had helped the accused Raj Pal Bahl who was her brother-in-law (dever) to obtain education and degree of B.A.M.S. Accused Raj Pal Bahl was married with Vandana Bahl who was also medical practitioner. Both used to practice in the clinic of her sister Dr. Komal Bahl. In the year 1991 husband of Dr. Komal Bahl got admission in MD at Medical College. Patiala. Due to joint practice, the relations between Dr. Komal Bahl on one side and accused on the other side became stained. Dr. Komal Bahl and Dr. Satya Pal Bahl sold their house in Urban Estate, Ambala City and again started living together in the joint family. Dr. Vandana Bahl gave a birth to male child who was suffering from Thalacemia Major disease. This disease was detected after 4-5 months. The story regarding demand of Rs.7 lacs for the treatment was repeated in the Court also. It is stated that on refusal to part money the accused started behaving rudely with the deceased. She discussed the problem with her husband who suggested that he will drop the idea of pursuing Post Graduation in Medicine and would join her in practice but deceased wanted her husband not to leave education in between. Thereafter both the accused started teasing deceased mentally and harassing her for not giving the amount for treatment. They used to say that they will throw deceased out of the clinic situated at Vishkarma Road, Ambala City. Due to maltreatment at the 7 Criminal Appeal No.479-SB of 1997 hands of the accused, deceased remained tense. The witness further stated that uncle Jai Pal Arora informed him that there was quarrel in the family and in that quarrel both the accused gave pushes to the deceased and asked her to remain out of the clinic and chair was occupied by Vandana Bahl accused forcibly. He further stated that accused had deliberately wasted four hours precious time by taking the deceased to PGI, Chandigarh. He further deposed that after cremation some people were whispering that her sister had died due to the tension created by both the accused. In cross-examination witness further testified that Dr.Komal Bahl used to reside in the joint family from 1979 to 1986. Then she shifted to independent house. Thereafter she sold her house in Urban Estate in 1992 and rejoined joint family. After the deceased had joined the joint family, there was one common mess. Her father-in-law was running a shoe shop along with his elder son Yash Pal. Dr. Satya Pal Bahl husband of the deceased was in Punjab Govt. service and was doing M.D. at Patiala. He further stated that he had no knowledge that Dr. Komal Bahl used to dominate the family as she was running the clinic and was the major source of income for the family. However, this witness admitted that at the time of marriage of the deceased Dr. Satya Pal Bahl, accused Raj Pal Bahl was aged 17-18 years and the deceased was treating accused Raj Pal Bahl as her child and had helped him to obtain education. This witness admitted that it was not in his knowledge that Raj Pal Bahl also used to respect deceased her bhabhi as mother. The following line of cross- examination is important to be noticed:- "In fact, she had joined the joint family because she became alone after her husband had gone to Patiala to do M.D.” It also surfaced in the cross-examination of Narender Kumar Arora PW-3 that accused Raj Pal Bahl completed his B.A.M.S. from 8 Criminal Appeal No.479-SB of 1997 Kurukshetra University in the year 1989-90. Thereafter he used to work in the clinic of Dr. Komal Bahl who was also B.A.M.S. Dr. Janak Arora appeared as PW-4. He corroborated testimony of PW-3 Narender Kumar Arora. He stated that on 19.05.1993 at 6.45 PM he received the telephonic call that Dr. Komal Bahl is serious and admitted in PGI, Chandigarh. On receipt of this information, he had gone to the doctor’s hostel to contact husband of the deceased where he found Dr. Satya Pal Bahl standing in his room well dressed and in the car of the husband of her sister, he along with his wife came to PGI, Chandigarh. Outside the emergency gate of PGI, he met the accused Raj Pal Bahl. He enquired him as to what had happened. Raj Pal Bahl had told him nothing. He went inside the hospital ward asked her sister as to what had happened. She was talking irrelevantly at that time. He had attended the cremation. This witness in cross-examination stated "It is correct that my sister had told me in the PGI, Chandigarh that she had consumed tablets of Aluminium Phosphide due to mental agony and further asked me to look after her children". Jaipal appeared as PW-5. He was a retired Tehsildar. Dr.Komal Bahl deceased was his niece. According to this witness, on 16.05.1993, deceased came to his house at 8.30 PM. She called Jugal Kishore there and told both that Rs.8 lacs are required for the treatment of son of Raj Pal Bahl, who was pressurizing her to part with the money but she was not in a position to give money as she had started a new clinic. She asked the witness to intervene in the matter and get the dispute settled as accused should not interfere in her affairs. On 18.05.1993 at about 10.00 AM, this witness received telephonic message from the deceased that accused Vandana Bahl sat on the chair meant for the deceased in the clinic. Later he learnt about the death of Dr. Komal Bahl. 9 Criminal Appeal No.479-SB of 1997 Dr. S.P. Bahl husband of the deceased appeared as PW-7. He stated that his wife died on 20.05.1993. He proved letters Ex.PL, Ex.PL/1, Ex.PL/2 and Ex.PL/3. In cross-examination, this witness stated that his wife had very cordial relation with the accused person and there was never dispute between them of any kind. He further stated that in Ambala there was not efficient doctor available to handle the case of Aluminium Phosphide as there was lack of adequate facilities. In a answer to question, this witness stated that his wife was overburdened and therefore she was disturbed and there was no other cause for her to commit suicide. Shri Balwan Singh, ASI, from S.P. Office, Kaithal appeared as PW-8. He had conducted inquest proceedings and proved registration of case. Prosecution closed its evidence. The accused were examined under Section 313 Cr.P.C. They denied all incriminating circumstances. Dr. Raj Pal Bahl claimed innocence and stated that he had cordial relations with Dr. Komal Bahl and he never maltreated her. She committed suicide because of her own depression. He took her to PGI to save her life. He neither maltreated her nor demanded any money. To similar effect, the statement was made by Dr. Vandana Bahl. In the early part of the judgment, this Court had culled the circumstances which according to the prosecution constitute abetment to suicide and has also formulated the question for the consideration of the Court. Brief discussion is necessary to arrive at conclusions. 10 Criminal Appeal No.479-SB of 1997 At the time of marriage of the deceased, accused Raj Pal Bahl was aged 17-18 years. It has come in evidence that deceased was treating her as a child, reared him, provided education and performed his marriage. Deceased was married with the elder brother of accused Raj Pal Bahl in 1979. Accused were married in the year 1991. A child was born to them in 1992 who was aged 10 months at the time of incident and was a patient of Thalacemia Major disease. Deceased was not only running a clinic at Vishavkarma Road at Ambala but was also building another clinic at Circular Road, Ambala. She was also contributing for imparting education to her husband who was a student of Post Graduation in Medicine at Patiala. After the admission of her husband in the Medical College, she had sold her house in Urban Estate and had joined the joint family. According to the witnesses, she joined the joint family, not to reside alone. It is in this context, Court has to determine that whether demand made by dever and devrani that Rs.7 lacs be given to them for treatment of their son is to be taken as abetment to suicide or not. Accused were not only joint in mess but were also working in the clinic jointly with the deceased. The prosecution has been able to project only one single instance of the alleged harassment and torture i.e. on the day when deceased committed suicide Vandana Bahl occupied her chair in the clinic as accused allegedly intended to push her out of the clinic. This act in itself, will not constitute the intention on part of the accused to drive the deceased to commit suicide. Recently in Gangula Mohan Reddy versus State of Andhra Pradesh, 2010(1) Recent Apex Judgments, 106, Hon'ble the Supreme Court has held as under:- "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." 11 Criminal Appeal No.479-SB of 1997 For arriving at abovesaid observation, Hon'ble the Supreme Court had considered law propounded to determine abetment to suicide in Ramesh Kumar v. State of Chhattisgarh, 2001(4) RCR (Criminal) 537 : (2001)9 SCC 618, State of West Bengal v. Orilal Jaiswal, 1994(3) RCR (Criminal) 186 : (1994)1 SCC 73 and Chitresh Kumar Chopra v. State (Govt. Of NCT of Delhi), 2009(4) RCR (Criminal) 196 : 2009(5) RAJ 278 : 2009(11) SCALE 24. The abovesaid view was also reiterated in Amalendu Pal @ Jhantu v. State of West Bengal, 2010(1) R.A.J., 184. In that judgment also Hon'ble the Apex Court relied upon Randhir Singh v. State of Punjab, 2004(4) RCR (Criminal) 740 : 2004(3) Apex Criminal 683 : (2004) 13 SCC 129 and Kishori Lal v. State of M.P., 2007(3) RCR (Criminal) 385 : 2007(3) RAJ 613 : (2007) 10 SCC 797 to arrive at a conclusion that discord or differences in domestic life quite common to the Society to which the victim belonged will not constitute abetment to suicide. It will be apposite to reproduce following portion from Amalendu Pal @ Jhantu’s case (supra): “13. The legal position as regards Sections 306 IPC which is long settled was recently reiterated by this Court in the case of Randhir Singh v. State of Punjab, 2004(4) RCR (Criminal) 740 : 2004(3) Apex Criminal 683 : (2004)13 SCC 129 as follows in paras 12 and 13: ‘12. Abetment involves a mental process of instigating a person or intentionally aiding that person in doing of a thing. In cases of conspiracy also it would involve that mental process of entering into conspiracy for the doing of that thing. 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. 12 Criminal Appeal No.479-SB of 1997 13. In State of W.B. v. Orilal Jaiswal this Court has 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 meted out to the victim had in fact induced her to end the life by committing suicide. If it transpires to the Court that a victim committing suicide was hypersensitive to ordinary petulance, discord and differences in domestic life quite common to the 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 of abetting the offence of suicide should be found guilty.’ 14. Further in the case of Kishori Lal v. State of M.P., 2007(3) RCR (Criminal) 385 : 2007(3) RAJ 613 : (2007) 10 SCC 797, this Court gave a clear exposition of Section 107 IPC when it observed as follows in para 6: ‘6. Section 107 IPC defines abetment of a thing. The offence of abetment is a separate and distinct offence provided in IPC. A person, abets the doing of a thing when (1) he instigates any person to do that thing; or (2) engages with one or more other persons in any conspiracy for the doing of that thing; or (3) intentionally aids, by act or illegal omission, the doing of that thing. These things are essential to complete abetment as a crime. The word “instigate” literally means to provoke, incite, urge on or bring about by persuasion to do any thing. The abetment may be by instigation, conspiracy or intentional aid, as provided in the three clauses of section 107. Section 109 provides that if the act abetted is committed in consequence of abetment and there is no provision for the punishment of such abetment, then the offender is to be punished 13 Criminal Appeal No.479-SB of 1997 with the punishment provided for the original offence. “Abetted” in section 109 means the specific offence