CRR No.135 of 2010 (O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CRR No.135 of 2010 (O&M) Date of decision: 12.01.2011 Pritam Singh ....Petitioner Versus Arvinder Singh and others ....Respondents CORAM: HON'BLE MR. JUSTICE ALOK SINGH Present: - Mr. M.S. Rakkar, Sr. Advocate, with Mr. P.S. Baath, Advocate, for the petitioner. 1.Whether Reporters of local papers may be allowed to see the judgment? 2.Whether to be referred to the Reporters or not? 3.Whether the judgment should be reported in the Digest? ***** ALOK SINGH, J (ORAL) Complainant has invoked the revisional jurisdiction of this Court challenging the judgment dated 11.8.2009 passed by Additional Sessions Judge, Kurukshetra, thereby acquitting the accused- respondents in Sessions Case No.3 of 2007/2008 pursuant to FIR No.130 dated 29.4.2007 registered under Section 306 read with Section 34 of the Indian Penal Code at Police Station Shahabad. The prosecution case inter alia is that on 29.4.2007, Pritam Singh (PW9) (father of deceased Smt. Neena) made his statement Ex. P13 to the police to the effect that he is a resident of village Banur, District Patiala, and is having two sons and a daughter Neena. Said Neena (since deceased) was married to accused Arvinder Singh on 26.3.1995 and out of their wedlock, a son Kanwar Pal Singh, was born, who was about 10/11 years of age. His daughter Neena had done D. CRR No.135 of 2010 (O&M) -2- Pharmacy and she had a licence of selling medicines. The complainant further stated that he had given dowry to his daughter Neena as per his capacity. His daughter Neena wanted to do job and at the time of marriage of Neena with accused Arvinder Singh, Ujjagar Singh accused (father of Arvinder Singh and father-in-law of Neena) had promised that either he shall manage a job for Neena or he shall get her opened a chemist shop. However, the said promise had not been fulfilled till date. As and when Neena used to talk on this topic, accused Arvinder, her husband, used to abuse her and gave a beating to her. The mother-in- law of Neena, namely accused Ram Kaur, also used to taunt her and she treated her badly, due to which, Neena used to remain upset. In this regard, Neena had told the complainant about two years back on phone. At that time, the complainant, his wife Smt. Inderjit Kaur, son Kulbir Singh and relative Prem Singh and other relatives, had gone to village Kishangarh (i.e. the village of the accused) and the accused persons were made to understand. Thereafter, Neena remained alright at her matrimonial home but then, accused Arvinder, on the asking and instigation of his mother and father, used to give a beating to Neena and misbehave with her. Due to this, Neena started remaining mentally ill. Said Neena had also come to her parental home for taking medicines and she was got treated by the complainant as well as by the accused persons. The deceased Neena was still under treatment in PGI, Chandigarh. The complainant further stated that on 28.4.2007, at about 4/5.00 p.m., he received a phone call from accused Ujjagar Singh (father-in-law of Neena), on his mobile phone to the effect that Neena had committed suicide by hanging on a ceiling fan with a dupatta and CRR No.135 of 2010 (O&M) -3- she had died. On receiving this information, the complainant, along with his relatives and family members, went to the house of the accused in village Kishangarh and found the dead body of their daughter Neena hanging in a room with the ceiling fan. Said Neena deceased was removed from the ceiling fan. Thereafter, the complainant talked to the other villagers and expressed his suspicion to the effect that his daughter Neena had committed suicide after being fed up with the atrocities and ill behaviour meted out to her by her husband Arvinder accused, mother- in-law Smt. Ram Kaur accused and father-in-law Ujjagar Singh accused. The post mortem on the dead body of deceased Neena was conducted at LNJP Hospital, Kurukshetra, and as per the post mortem report Ex.P19, cause of death was aesthesia as a result of hanging, which was ante mortem in nature and sufficient to cause death in the ordinary course of events. No external mark of injury was found on the person of deceased Neena and as such, it was opined that the death was suicidal. To prove the case, prosecution has examined 11 witnesses. Balak Ram PW1, the photographer, has stated that on 28.4.2007, he had visited village Kishangarh at the house of accused Arvinder Singh and had taken five photographs. In the photographs deceased Neena can be seen hanging in the room on the ceiling fan with a dupatta. Smt. Inderjit Kaur PW7, mother of the deceased Neena has stated that her daughter was married to accused Arvinder Singh on 26.3.1995 and that Neena had a son, who was aged about 11 years. She has also stated that Neena was mentally depressed and lost her sleep and, thus, she was got treated at Kurukshetra and thereafter in PGI, Chandigarh. She has further stated that accused have been taunting Neena deceased that if she did not want CRR No.135 of 2010 (O&M) -4- to work, she should die. She has further stated that Neena had committed suicide by harassment and taunts given by the accused persons. Hon'ble Apex Court in the matter of Sanju @ Sanjay Singh Sengar Vs. State of M.P., (2002) 5 Supreme Court Cases 371 in paragraph No.12 has observed as under: - “Even if we accept the prosecution story that the appellant did tell the deceased 'to go and die', that itself does not constitute the ingredient of 'instigation'. The word 'instigate' denotes incitement or urging to do some drastic or unadvisable action or to stimulate or incite. Presence of mens rea, therefore, is the necessary concomitant of instigation. It is common knowledge that the words uttered in a quarrel or in a spur of the moment cannot be taken to be uttered with mens rea. It is in a fit of anger and emotional.” Hon'ble Apex Court Bhagwan Das Vs. Kartar Singh & Ors., 2007(11) SCC 205 in paragraph No.15 has held as under: - “15. In our opinion the view taken by the High Court is correct. It often happens that there are disputes and discords in the matrimonial home and a wife is often harassed by the husband or her in-laws. This, however, in our opinion would not by itself and without something more attract Section 306 IPC read with Section 107 IPC.” Hon'ble Apex Court in the matter of Sohan Raj Sharma Vs. State of Haryana, AIR 2008 SCW 3202 in paragraph Nos. 10 and 11 has held as under: - “10. Section 107 IPC defines abetment of a thing. The offence of abetment is a separate and distinct offence provided in the Act as an offence. 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, CRR No.135 of 2010 (O&M) -5- 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 with the punishment provided for the original offence. 'Abetted' in Section 109 means the specific offence abetted. Therefore, the offence for the abetment of which a person is charged with the abetment is normally linked with the proved offence. 11. In cases of alleged abetment of suicide there must be proof of direct or indirect acts of incitement to the commission of suicide. The mere fact that the husband treated the deceased-wife with cruelty is not enough.” Recently, the Hon'ble Apex Court in the matter of SS Chheena Vs. Vijay Kumar Mahajan and another, 2010(4) RCR (Criminal) 66 in paragraph Nos. 27, 28 and 29 has held as under: - “27. This Court in Chitresh Kumar Chopra v. State (Govt. of NCT of Delhi) 2009(4) R.C.R.(Criminal) 196 : 2009(5) R.A.J. 278: (2009) 16 SCC 605 had an occasion to deal with this aspect of abetment. The Court dealt with the dictionary meaning of the words "instigation" and "goading". The Court opined that there should be intention to provoke, incite or encourage the doing of an act by the latter. Each person's suicidability pattern is different from the other. Each person has his own idea of self-esteem and self-respect. Therefore, it is impossible to lay down any straitjacket formula in dealing with such cases. Each case has to be decided on the basis of its own facts and circumstances. 28. 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. The intention of the legislature and the ratio of the cases decided by this Court is clear that in order to convict a person under Section 306 IPC there has to be a clear mens rea to commit the offence. It also requires an active act or direct act which led the deceased to commit suicide seeing no option and that act must have been intended to push the deceased into such a position that he committed suicide. 29. In the instant case, the deceased was undoubtedly hypersensitive to ordinary petulance, discord and differences which happen in our day-to-day life. Human CRR No.135 of 2010 (O&M) -6- sensitivity of each individual differs from the other. Different people behave differently in the same situation.” Undisputedly, deceased Neena was under the depression and earlier she was being treated in LNJP Hospital, Kurukshetra, and thereafter was being treated in PGI, Chandigarh. In view of the dictum of the Hon'ble Apex Court even harassment and cruelty without any mens rea would not amount to an offence under Section 306 IPC. Moreover, from the material available on the record, it is seen that deceased Neena was hypersensitive and was under depression and was given treatment earlier in LNJP Hospital, Kurukshetra and thereafter in PGI, Chandigarh, hence possibility to commit suicide under depression and oversensitive state of mind cannot be ruled out. Hence, in the opinion of this Court, learned Trial Court was perfectly well within its jurisdiction by acquitting the accused. Hon'ble Apex Court in the matter of Akalu Ahir reported in 1973(3) SCC 583 in para 8 has observed as under: - “...........the revision from an order of acquittal, should appropriately refrain from interfering except when there is a glaring legal defect of a serious nature which has resulted in grave failure of justice. .............It is only in glaring cases of injustice resulting from some violation of fundamental principles of law by the trial court in the court of trial, that the High Court is empowered to set aside the order of acquittal and direct the retrial of the acquittal accused persons. From the very nature of this power, it should be exercised in exceptional cases and with great care and caution. Trials are not to be lihtly set aside when such order expose the accused persons to a fresh trial with all its consequential harassment. This matter is not res integra and had indeed been dealt with by this court at least in the four cases noticed by the High Court. ...............It makes all the more incumbent on the High Court to see that it does not convert the finding of acquittal into one of conviction by the indirect method of ordering re-trial. No doubt, in the opinion of this court CRR No.135 of 2010 (O&M) -7- no criteria for determining such exceptional cases which would cover all contingencies for attracting the High Court's power of ordering retrial can be laid down. This Court, however, by way of illustration, indicated the following categories of cases which would justify the High Court in interfering with a finding of acquittal in revision. i. Where the trial court has no jurisdiction to try the case, but has still qcquitted the accused; ii. Where the trial court has wrongly shut out evidence which the prosecution wishes to produce; iii. Where the appellate court has wrongly held the evidence which was admitted by the Trial Court to the inadmissible; iv. Where the material evidence has been overlooked only (either) by the trial court or by the appellate court; and v. Where the acquittal is based on the compounding of the offence which is invalid under the law.” These categories were, however, merely illustrative and it was clarified that other cases of similar nature can also be properly held to be of exceptional nature where the High Court can justifiably interfere with the order of acquittal.” Hon'ble Apex Court, in the matter of Bindeshwari Prasad Singh Vs. State of Bihar reported in 2002(6) SCC 560 in paras 13 and 14 has observed as under: - “13. The instant case is not one where any such illegality was committed by the trial court. In the absence of any legal infirmity either in the procedure or in the conduct of the trial, there was no justification for the High Court to interfere in exercise of its revisional jurisdiction. It has repeatedly been held that the High Court should not re-appreciate the evidence to reach a finding different from the trial court. In the absence of manifest illegality resulting in grave miscarriage of justice, exercise of revisional jurisdiction in such cases is not warranted. 14. We are, therefore, satisfied that the High Court was not justified in interfering with the order of acquittal in exercise of its revisional jurisdiction at the instance of the informant. It may be that the High Court on appreciation of the evidence on record may reach a conclusion different from that of the trial court. But that CRR No.135 of 2010 (O&M) -8- by itself is no justification for exercise of revisional jurisdiction under Section 401 of the Code of Criminal Procedure against a judgment of acquittal. We cannot say that the judgment of the trial Court in the instant case was perverse. No defect of procedure has been pointed out. There was also no improper acceptance or rejection of evidence nor was there any defect of procedure or illegality in the conduct of the trial vitiating the trial itself. At best the High Court thought that the prosecution witnesses were reliable while the trial court took the opposite view. This Court has repeatedly observed that in exercise of revisional jurisdictional against an order of acquittal at the instance of a private party, the Court exercises only limited jurisdiction and should not constitute itself into an appellate court which has a much wider jurisdiction to go into questions of facts and law, and to convert an order of acquittal into one of conviction.” Hon'ble Apex Court, in the matter of Johar Vs. Mangal Prasad reported in 2008(3) SCC 423 in para 19 has held as under: - “19. The approach of the High Court to the entire case cannot be appreciated. The High Court should have kept in mind that while exercising its revisional jurisdiction under Sections 397 and 401 of the Code of Criminal Procedure, it exercises a limited power. Its jurisdiction to entertain a revision application, although is not barred, but severally (sic severely) restricted, particularly when it arises from a judgment of acquittal.” In view of the dictum of the Hon'ble Apex Court, in the humble opinion of this Court, in a revision filed by the complainant against the order of acquittal, revisional Court has no jurisdiction to re- appreciate the evidence. However, revisional Court shall be within its jurisdiction to see as to whether trial Court has shut out or has overlooked the evidence which could clarify the issue. Revisional Court can further seek manifest error of law or jurisdictional error or procedural error committed by the trial Court amounting to failure of justice. In the present case from the perusal of the record, I am CRR No.135 of 2010 (O&M) -9- satisfied that learned trial Court has not shut out or overlooked any evidence, which could prove offence against the accused. I do not find any manifest error of law or jurisdictional error or procedural error on the part of the trial Court resulting in wrong judgment. In the opinion of this Court, judgment impugned does not require any interference. Dismissed. (Alok Singh) Judge January 12, 2011 R.S.