IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeals No.557 & 558 of 2008 Reserved on : July 15, 2009. Date of decision : July 23, 2009 Cr.A No.557/2009 Vinit Sood …Appellant. Versus State of H.P. …Respondent. Cr.A No.558/2009 Banarsi Dass Sood …Appellant. Versus State of H.P. …Respondent. Coram The Hon’ble Mr. Justice Surjit Singh, Judge. Whether approved for reporting?1 For the Appellants : Mr. Anup Chitkara & Ms Nidhi Chawla, Advocates. For the Respondent : Mr. Ramesh Thakur, Assistant Advocate General. Surjit Singh, J These two appeals are directed against the judgment, dated 30th September, 2008, of learned Sessions Judge, Kullu, whereby the appellants, in two appeals, who were jointly tried for offences, under Sections 498-A, 306, read with Section 34, and Section 304-B of the Indian Penal Code, have been convicted and sentenced. Vinit Sood (appellant in Criminal Appeal No.557 of 2008) has been convicted of offences, under Sections 498-A, 306, read with Section 34, and Section 304-B of the Indian Penal Code, and sentenced to undergo rigorous imprisonment for seven years and to pay a fine of Rs.10,000/-, for offence, under Section 304-B of the Indian Penal Code; Whether reporters of the local papers may be allowed to see the judgment? …2… seven years rigorous imprisonment and fine of Rs.10,000/-, for offence, under Section 306 of the Indian Penal Code; and rigorous imprisonment for three years and fine of Rs.10,000/-, for offence, under Section 498-A of the Indian Penal Code. Appellant in the other appeal (Criminal Appeal No.558 of 2008), namely Banarsi Dass Sood, has been convicted of offences, under Sections 304-B and 498-A of the Indian Penal Code and sentenced to undergo simple imprisonment for a period of seven years and to pay a fine of Rs.10,000/-, for offence, under Section 304-B of the Indian Penal Code; and simple imprisonment for three years and fine of Rs.10,000/-, for offence under Section 498-A of the Indian Penal Code. 2. It may be stated at the very outset that order of conviction of appellant Vinit Sood, for offence, under Section 306, read with Section 34 of the Indian Penal Code, is bad, on the face of it, because out of three accused, who were jointly tried, one, namely Vijay Kumari Sood, has been acquitted of all the charges, and appellant Banarsi Dass Sood has been acquitted for the charge, under Section 306, read with Section 34 of the Indian Penal Code, and, therefore, appellant Vinit Sood, could not have been convicted of offence, under Section 306, read with Section 34 of the Indian Penal Code, especially when it is not the case of the prosecution that there was some other accused also, who shared the intention for offence, under Section 306 of the Indian Penal Code, with appellant Vinit Sood. 3. Case of the prosecution, which has led to the conviction and sentencing of the appellants in the two appeals, …3… may be summed up thus. Deceased Monika was married to appellant Vinit Sood. Marriage had taken place in November, 2000. Appellant Banarsi Dass Sood is the father of appellant Vinit Sood. Vijay Kumari Sood, who was jointly tried with the appellants, but has been acquitted, is the mother of appellant Vinit Sood. On the night intervening 29th and 30th July, 2003, deceased Monika, who was an Ayurvedic doctor, consumed an insecticide, with brand name ‘dichlorovos’, and was found dead on the terrace around 4.30 a.m. Dead body was subjected to postmortem examination. Two ante-mortem injuries were noticed. They were a bruise over the medial aspect of the left upper arm, three inches from shoulder level and a laceration over the right ear near the earring hole. No other ante-mortem injury was noticed. Cause of death was opined to be consumption of some poisonous substance. Final opinion was reserved till receipt of Chemical Examiner’s report to whom viscera was sent. Chemical Examiner reported that there were traces of ‘dichlorovos’ in the viscera. Death was opined to have taken place within few hours of consumption of poison. 4. Parents of the deceased, who lived in the same locality of Kullu town, as the accused, were informed around 5 a.m., on 30th July, 2003, that the deceased had consumed some poisonous substance and was lying in a serious condition in the hospital at Kullu. Amit Gupta, a brother of the deceased, after visiting the hospital and seeing the dead body, made statement, under Section 154 of the Code of Criminal Procedure, against the appellants and their accomplice Vijay …4… Kumari Sood, at 6 a.m. The statement is Ex. PW-8/A. As per this statement, soon after the marriage the two appellants and Vijay Kumari Sood, the mother-in-law of the deceased, started harassing the deceased, in connection with demand for dowry and twice she had been turned out of the matrimonial home, when the demands for dowry were not met. A Mama of the deceased and Amit Gupta, namely Chander Mohan Sood (PW- 17), intervened when the deceased was turned out of the matrimonial home and got the matter settled between the deceased and her husband appellant Vinit sood. The deceased often used to tell Amit Gupta, as also her mother, about harassment, on telephone, but they did not receive any call from her for quite some time. However, on 29th July, 2003, around 9.30 p.m., Amit Gupta received a call from the deceased. She told that her in-laws had been harassing her (tang kar rahe hain) those days and that day also they had harassed her a lot. He (Amit Gupta) gave some assurance to her, but on the next morning at 5.00, he received a telephonic call from appellant Banarsi Dass Sood that his sister had consumed some poisonous substance. 5. Case was registered, under Sections 498-A and 304-B of the Indian Penal Code, against the appellants and Vijay Kumari Sood. During the course of investigation, a diary Ex. P-27, containing a number of writings of the deceased marked Q-1 to Q-26 and also Photostat copy, Ex. P-13, of certain leaves, from the same diary, marked Q-27 to Q-30, were taken into possession. Some admitted writings of the …5… deceased were also taken into possession. Writings marked Q- 1 to Q-30 were sent to the Handwriting Expert for comparison with the admitted writings of the deceased. The Expert, vide report Ex. PW-18/A, opined that admitted writings and the questioned writings, marked Q-1 to Q-30, were in the hand of one and the same person. 6. Appellants and Vijay Kumari Sood were challaned, on the completion of investigation. Judicial Magistrate, in whose Court challan was filed, after complying with the requirement of Section 207 of the Code of Criminal Procedure, committed the case to the Sessions Court. The Sessions Court charged appellants and Vijay Kumari Sood with offences, under Sections 498-A, 306, read with Section 34, and Section 304-B of the Indian Penal Code, and on their pleading not guilty tried them for the aforesaid offences. 7. Prosecution mainly relied upon the testimony of Amit Gupta (PW-8), a brother of the deceased, Sulekha (PW- 10), mother of the deceased, Vandana Gupta (PW-11), wife of another brother of the deceased, Rajesh Sood (PW-9), a cousin of the deceased, Chander Mohan Sood (PW-17), a Mama of the deceased, Dr. Roshan Lal (PW-12), Medical Officer, who conducted the autopsy and Dr. Meenakshi Mahajan (PW-18), Handwriting Expert, who compared the questioned writings with the admitted writings of the deceased, besides relying upon the entries in the diary, Ex. P-27, to bring the charge home to the appellants and Vijay Kumari Sood. Appellants denied the charge and pleaded innocence. They denied that they had ever …6… demanded any dowry or had subjected the deceased to cruelty or harassment. 8. Learned trial Court believed the prosecution version that the deceased used to be harassed, on account of dowry demand and because of such harassment she took her life, by consuming insecticide. However, trial Court held that since Vijay Kumari Sood had not been at Kullu, for the last 1½ month, as she had gone to America, she was not responsible for the death of the deceased. She was, therefore, acquitted. Appellant Vinit Sood was held guilty of dowry death and abetting suicide and also of the offence of cruelty, under Section 498-A of the Indian Penal Code. Appellant Banarsi Dass Sood was convicted of the offence, under Section 304-B and 498-A of the Indian Penal Code. 9. Before touching the merits of the case and analyzing the evidence, it may be stated that offences of abetment to suicide, punishable under Section 306 of the Indian Penal Code, and dowry death, punishable under Section 304-B of the Indian Penal Code, are separate and distinct. Offence, under Section 306 of the Indian Penal Code, is committed, when someone is abetted to commit suicide and the abetted person actually commits suicide. It is not necessary in such a case that the abetment should be on account of demand for dowry or in connection with any such demand. Offence, under Section 304-B of the Indian Penal Code, is committed when the death of a woman is caused by burning or bodily injury or it occurs otherwise than under normal circumstances, …7… within seven years of her marriage and it is shown that soon before her death, she was subjected to cruelty or harassment by her husband or any relative of her husband, for or in connection with any demand for dowry. Offence of dowry death is graver than the offence of abetment to suicide, inasmuch as punishment for the offence of dowry death is minimum imprisonment for seven years, which may extend to imprisonment for life, while in the case of abetment to suicide it is imprisonment for a term which may extend to ten years. Therefore, a person cannot be convicted both of an offence, under Sections 306 and under Section 304-B of the Indian Penal Code, for the death of the same person. The trial Court has, thus, erred in convicting appellant Vinit Sood, for both offences, under Sections 306 and 304-B of the Indian Penal Code. 10. Turning to the merits of the case, evidence led by the prosecution, during the course of trial, is not only inconsistent and self-contradictory, but also contradictory to the earliest version given to the police by PW-8 Amit Gupta, in the form of his statement Ex. PW-8/A, under Section 154 of the Code of Criminal Procedure. Testimony of the witnesses examined by the prosecution is also contradictory to the writings of the deceased, Marked Q-1 to Q-30, in diary Ex. P-27 and on loose folios Ex. P-13. 11. As already noticed, per statement Ex. PW-8/A, the deceased was harassed for or in connection with demand for dowry. In the writings, Marked Q-1 to Q-30, there is not even …8… a whisper of demand for dowry. The alleged harassment is psychological, on account of doubt having been created in the mind of her husband by her mother-in-law that she is a thief. She holds her mother-in-law (acquitted accused), Vijay Kumari Sood, squarely responsible for this. 12. From an overall reading of the notes Q-1 to Q-30, all of which have not been taken into account by the trial Court, it appears that the deceased considered her husband, i.e. appellant Vinit Sood, to be good at heart (per writing Q- 27), but her mother-in-law succeeded in creating a suspicion in his mind that she was a thief. It appears from the notings in the diary that matrimonial life of the deceased was going on nicely till September, 2002, when a sum of Rs.2,500/- had been stolen from a pocket of the pants of appellant Vinit Sood, which he had hung in the bedroom, occupied by him and the deceased. Vijay Kumari Sood, mother-in-law of the deceased, and appellant Vinit Sood, appear to have blamed each other for the theft. Mother-in-law of the deceased took oath at a temple and stated that she had not committed the theft. She also appears to have succeeded in convincing appellant Vinit Sood that theft was committed by none else than the deceased. She also started taunting that the money was perhaps being stolen for arranging gifts from the side of deceased’s parents, for the child, which was in the womb of the deceased. It may be stated that the deceased was pregnant in September, 2002, she delivered a child on 18th December, 2002. …9… 13. Writings in the diary also show that some theft of gold had taken place at the place of parents of the deceased and the mother of appellant Vinit Sood had taunted that money was being stolen from their house by the deceased to make good the loss sustained by her parents, on account of theft of gold. Writings also indicate that the deceased got frustrated, on account of her having failed to convince her husband appellant Vinit Sood that she was innocent and the money had not been stolen by her. She writes in the diary that why should she have committed theft of petty amounts of Rs.500/- or even Rs.2,500/-, when she had been getting handsome salary as Ayurvedic doctor, employed in a Government Dispensary. It may be stated that the salary of the deceased was Rs.17,000- 18,000/- per month. The only thing, which she has written against her father-in-law in the diary, is that once she overheard him consoling her mother-in-law that liars try to prove their innocence by crying. At the same time, she writes that during day time her father-in-law had sympathised with her. 14. Now coming to the oral evidence, even though in the earliest version, Ex. PW-8/A, given to the police, PW-8 Amit Gupta got recorded that the harassment was for or in connection with dowry demand and it started immediately after the marriage, yet while in the witness-box, he stated that for initial two/three months relations between the accused and the deceased were cordial, but thereafter the deceased had started looking disturbed and on enquiry she told that her in-laws were …10… not satisfied with the dowry. He did not say that the deceased told that there was any demand for dowry. Again, in the FIR he got recorded that the deceased was turned out of the matrimonial home twice for dowry demand but when in the witness-box he stated that she was turned out on the allegation that she had committed theft of Rs.200-300 and after staying with them for 7-8 days, she returned to the matrimonial home. In the FIR he stated that both the times his Mama PW-17 Chander Mohan Sood intervened, but while in the witness-box, he stated that his Mama intervened only once and second time a nephew of appellant Banarsi Dass Sood intervened and got the matter patched up. 15. PW-17 Chander Mohan Sood stated that the deceased met him two-three times after the marriage and complained that she was being maltreated by her in-laws for bringing insufficient dowry. He stated that when the deceased was turned out of the matrimonial home in 2002, he accompanied by mother of the deceased, Sulekha Sood (PW-10), went to the house of the appellants for a patch up and when they were there appellant Vinit Sood brought a shawl and threw the same on his face, saying that this kind of items had been given in dowry. This part of the statement of PW-17 Chander Mohan Sood is not corroborated by anybody, not even by PW-10 Sulekha, the mother of the deceased, who, as per testimony of Chander Mohan Sood, was present with him at that time. …11… 16. PW-17 Chander Mohan Sood also introduced a new story for the alleged harassment. He stated that after the deceased gave birth to a female child, appellants started pressurising her to demand her share in the estate of her father, who had died before her marriage. He also stated that the appellants were unhappy with the deceased, because of her having given birth to a female child. This part of the story does not find mention in the earliest version, Ex. PW-8/A, nor is there any inkling of it even in the diary notes Q-1 to Q-30, which are in the hand of the deceased herself. 17. PW-10 Sulekha, the mother of the deceased, did not say that the deceased had ever complained that she was harassed for or in connection with demand for dowry. According to her, the mother-in-law of the deceased used to taunt her and appellant Banarsi Dass Sood used to put pressure on her to get her share in her father’s property and appellant Vinit Sood used to give her beatings. She stated that the deceased was turned out of the matrimonial home twice, with the accusation that she had committed theft of Rs.500/-, on each occasion. 18. Vandana Gupta (PW-11) and Rajesh Sood (PW-9), a sister-in-law and a cousin, respectively, of the deceased, also stated that the deceased used to be harassed for dowry and also for getting her share in her father’s estate. But, their evidence is not believable, because the deceased, who had been writing diary for about seven months before her death, with regard to the differences that cropped up between her and …12… her in-laws, there is no mention of any dowry demand or pressure for demanding her share in her father’s estate. Further, when the deceased never complained of dowry demand to her mother, it cannot be believed that she could have complained about the same to her brother’s wife or cousin. 19. As already noticed, there is no reference in the earliest version or even in the diary of the deceased that she was ever asked, leave alone pressurized to demand her share in her father’s property. Also, there is no mention of her having ever been beaten up by her husband. However, statement of PW-10 Sulekha about the accusation of theft of Rs.500/-, on both the occasions, when the deceased was allegedly turned out, matches with the entries made by the deceased in the diary, Ex. P-27, but only to the extent that she had been branded as thief by her mother-in-law. There is no mention in the notes, Q-1 to Q-30, about the deceased having been turned out of the matrimonial home on such allegations. May be that the deceased felt suffocated, on account of these accusations and went to her parental place, on her own. It may be stated that the house of the parents of the deceased is situated at a distance of only 200-300 yards from her in-laws’ place, as admitted by PW-10 Sulekha and PW-8 Amit Gupta. 20. From the notes in the diary, it is made out that the deceased started feeling suffocated only in December, 2002, when she developed a feeling that the faith and trust, which binds the husband and wife, had disappeared, on account of …13… her husband having been given the impression that she had stolen money from his pocket. She writes below the date, 11th December, 2002, in the diary, Ex. P-27, that prior to that day she had never written any diary and that she had taken to it (writing diary) because there was nobody to whom she could speak and that was the only way left to avoid getting into depression. 21. Of course, there were two ante-mortem injuries on the person of the deceased, per testimony of PW-12 Dr. Roshan Lal, who conducted the postmortem examination. One was just an abrasion on the medial aspect of the upper arm. It could have been caused when the deceased was lifted for being taken to the hospital. The other one was a small laceration on the right ear, near the hole for wearing earring. In the left ear there was a top, but in the right ear it was missing. It is quite likely that the laceration took place when the top got separated from the ear hole, probably, when she was writhing in pain or was being carried to the hospital. There is absolutely no evidence that the deceased was ever subjected to beatings. Parental house of the deceased is at a distance of only 200-300 yards from the house of the appellants. The mother and the brother of the deceased do not say that the deceased was ever beaten up or she ever complained that she was subjected to beatings. In the diary also, there is nothing suggesting that criminal force was ever used against the deceased. So, the aforesaid injuries cannot be assumed to have been caused by the appellants, by any act of violence. …14… 22. On critical analysis of notings in the diary, it appears that there was a clash of egos between the deceased and her mother-in-law. There was a fight for one-upmanship. Each tried to let the other down and both were bound to be losers. Deceased lost her life and the mother-in-law faced the ignominy of herself and her husband and son being charged with and tried for dowry death and her son remaining behind the bars for six long years. 23. In view of the above discussion, I am of the considered view that this is not a fit case for conviction of either of the two appellants for any of the offences, they were charged with and tried for. Consequently, both the appeals are allowed and the appellants are acquitted. Appellant Vinit Sood, being in jail, serving out the sentence awarded by the trial Court, is ordered to be set at liberty, forthwith. Both the appeals stand disposed of. July 23, 2009(sd) ( Surjit Singh ), J