IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No.20 of 2003. Judgment reserved on 26th March, 2010. Decided on: 29th March, 2010. _______________________________________________________ Bhup Ram ….Appellant. Versus State of Himachal Pradesh ……..Respondent. Coram Hon’ble Mr. Justice Surinder Singh, J. Whether approved for reporting1? Yes. For the appellant : Mr. Vinay Thakur, Advocate. For the respondent : Mr. Anshul Bansal, Additional Advocate General and Mr. J.S. Rana, Assistant Advocate General. ____________________________________________________ SURINDER SINGH, J. The appellant has challenged his conviction passed on 24th January, 2001, by the learned Sessions Judge, Kinnaur at Rampur Bushahr, in Sessions Trial No.21 of 2001, whereby he has been sentenced to undergo simple imprisonment for a period of seven years and to pay a fine of Rs.20,000/- under Section 306 of the Indian Penal Code with default clause. In short the prosecution case can be summed up as follows. Smt. Piara Devi (deceased) was married to the appellant on 13th December, 1999. She is alleged to have been accused of infidelity, having illicit relations with the younger brother of the appellant on account of which, the appellant used to maltreat her. One Geeta Devi from the Whether reporters of the Local papers are allowed to see the judgment? - 2 - village of the appellant informed on 29th April, 2000 PW-1 Om Parkash, the brother of the deceased, that she would be visiting her parental house by bus in the evening, but she was not found traveling in the said bus. Thereafter he informed Geeta Devi that she was not in the bus. She informed appellant. He also contacted Om Parkash (PW-1) and informed him that his wife was not traceable. He reached the village of his brother-in-law on 30th April, 2000. All of them went in search of her, but of no avail. As such, a report regarding her missing was lodged by Om Parkash aforesaid. Later her dead body was recovered on 12th May, 2000 from the bank of river Sutlej about 20 kilometers away from the house of the appellant. Inquest report Ext.PW-2/A was prepared by the police in the presence of PW-2 Naresh Kumar. The autopsy was performed by PW-4 Dr. Piyush Kapila, Department of Forensic Medicines, Indira Gandhi Medical College, Shimla. He issued the post-mortem report Ext.PW-4/A on 14th May, 2000. Viscera was sent for forensic examination and final report is Ext.PW-4/B. In the opinion of the doctor, deceased died as a result of ante-mortem drowning which led to asphyxia about 2/3 weeks ago, as per decomposition noticed on the body. Till 17th May, 2000 there was no complaint against the appellant about the maltreatment or anything else, but on 18th May, 2000 PW-1 Om Parkash got recorded his statement Ext.PW-1/A under Section 154 of the Code of Criminal Procedure, which culminated into FIR Ext.PW-8/A under Section 306 of the Indian Penal Code, alleging that - 3 - appellant used to suspect her character and used to maltreat her which led her to commit suicide. On completing the Challan, the case was presented against the appellant under the aforesaid Section in the Court for the trial of the appellant. He was accordingly charge-sheeted on 18th November, 2002. The appellant adjured his guilt and claimed trial. To prove its case, the prosecution examined brothers of the deceased PW-1 Om Parkash and PW-2 Naresh Kumar and also her mother PW-3 Smt. Dibbi Devi, besides examining the doctor, who had conducted the postmortem, the Investigating Officer and other formal witnesses. The statement of the appellant was also recorded under Section 313 of the Code of Criminal Procedure. At the end of the trial the appellant was convicted and sentenced by the learned trial Court as aforesaid, which is under challenge in this appeal. Shri Vinay Thakur, learned Counsel for the appellant, vehemently argued that the prosecution witnesses, i.e., mother and brothers of the deceased had exaggerated the version in evidence, which was not initially set up by them. Further that the Investigating Officer had also categorically stated that he had asked from them when her dead body was recovered if they had any suspicion on any one, but they did not entertain any suspicion. He also ventilated that the ingredients of the offence charged have not been proved and the prosecution has miserably failed to link the appellant for abetting suicide. - 4 - Contra, Shri Anshul Bansal, learned Additional Advocate General, duly assisted by Shri J.S. Rana, learned Assistant Advocate General, supported the impugned judgment of conviction and sentence. I have given my thoughtful consideration to the rival contentions of the parties and have carefully reappraised the evidence on record. There is an allegation of cruelty against the appellant that he had been accusing his deceased wife that she had illicit relations with his younger brother. PW-1 Om Parkash, the brother of the deceased, stated that before her death his sister had disclosed this fact to his mother that the appellant used to maltreat her by imputing the above allegation, but he stated that he did not know why his sister committed suicide and also the fact of suspicion was not in his knowledge when he reported the matter to the police. He further stated that on 4th or 5th May, 2001 (sic) should have been 2000 he was informed by his mother that the appellant entertained suspicion about the character of his wife. The dead body of the deceased was found on 12th May, 2000. It is important to note that PW1 admitted that on 30th April, 2000, the appellant alongwith him had searched for his wife. He also did not state before she was found missing that there was a tiff between the deceased and the appellant. Geeta Devi, close relative of the deceased, used to reside in the house adjoining to the appellant. She also did not say anything to the police about the alleged allegation or to the close relatives of the deceased. - 5 - PW-2 Naresh Kumar, although stated that when the report was lodged in the Police Station it was not in his knowledge that the appellant used to doubt the integrity of the deceased. Admittedly he did not say anything to the police about it. He also admitted that when the deceased did not visit the parental house, the appellant was contacted on phone on the same day. On coming to know this fact the appellant also visited their place. PW-3 Smt. Dibbi Devi, the mother of the deceased, stated that the deceased had only once told her that her husband used to doubt her integrity and this fact was disclosed by her to every member of the family who used to live jointly, on account of this the appellant was maltreating her. She further stated that when the appellant came to their house and enquired about the deceased, he informed her that some quarrel took place between him and the deceased in the evening and he had also slapped the deceased, thereafter deceased left her matrimonial home, but when confronted with her statement Ext.PW-3/A recorded under section 161 of the Code of Criminal Procedure, this thing did not find mention at all and she did not offer ay explanation as to why she omitted to state this important fact to the police. Even, PW-8 the Additional SHO, who had investigated this case, categorically stated that when the report of missing was lodged by PW-1 Om Parkash, he had enquired from the above witnesses whether they suspect any foul, but they did not express any doubt. The appellant in his statement recorded under Section 313 of the Code of Criminal Procedure alleged his - 6 - false implication in the case. According to him, he had cordial relations with his deceased wife. For attracting the provisions of Section 306 of the Indian Penal Code, the Court must be satisfied that the accused person(s) by their conduct created such an inhuman situation or were subjecting the deceased to such cruelty which amounted to abetment and led to the death either in unnatural form or as a suicide. Legally, the cruelty has to be seen in the context as understood in Section 498-A of the Indian Penal Code. In State of Himachal Pradesh v. Nikku [AIR 1996 SC 67], it was held by the Supreme Court that if the woman has been subjected to cruelty as defined in Section 498-A of the Indian Penal Code, the Court may presume, having regard to all circumstances of the case that suicide had been abetted by her husband or any of his relatives. Section 113-A of the Indian Evidence Act raises a presumption of abetment of suicide when the question is whether the commission of a suicide 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 further that her husband and such relative had subjected her to cruelty, the Court may draw the presumption, having regard to other circumstances that such suicide has been abetted by her husband or by such relative of her husband. To constitute abetment, abettor must be shown to have intentionally aided the commission of crime. The intention to aid the commission of the crime is the gist of the - 7 - offence of abetment by aid. To make out a case of abetment there must be instigation which in common parlance would mean to “to go” to urge forward or to provoke, incite or encourage to do an act. It has been observed by the Supreme Court in Bhagwan Das v. Kartar Singh and others, AIR 2007 SC 2045 that mere harassment of wife by husband due to differences per se does not attract Section 306 read with Section 107 of the Indian Penal Code, if the wife commits suicide. Now examining the case in the light of the above settled proposition of law, the evidence with respect to harassment or cruelty, which is required under Section 498-A of the Indian Penal Code stands not proved. Apart from delay, there is inconsistency, exaggeration and embellishment occurring in the statements of the prosecution witnesses, which makes the prosecution case highly doubtful. The allegation of illicit relation could not be proved by leading cogent and convincing evidence so as to bring home the offence within the mischief of Section 306 of the Indian Penal Code. Therefore, Section 113-A of the Evidence Act to draw the legal presumption cannot be pressed into service against the appellant for convicting the appellant. For the above reasons, the impugned judgment of conviction and sentence passed by the trial Court is unsustainable and is accordingly set aside. Consequently, the appellant is acquitted of the charges against him. The appeal filed by the appellant is allowed. - 8 - The appellant is discharged from the bail bonds entered upon by him at any time during the proceedings of this case. Records of the Court below be sent back forthwith. March 29, 2010. (Surinder Singh),J. (rc)