IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA Cr. Appeal No. 555/2004 Judgment reserved on 1.12.2011. Date of decision: 06.12.2011 Ashok Kumar …..Appellant Versus State of H.P. ……Respondent Coram: The Hon’ble Mr. Justice Surinder Singh, J. Whether approved for reporting?1 yes For the Appellant: Mr. N.K. Thakur, Advocate. For the respondent : Mr. P.M. Negi, Deputy Advocate General. Surinder Singh, J. Appellant has laid challenge in this appeal to his conviction and sentence passed by the learned trial Court in Sessions trial No. 9/7 of 2004/2001 dated 30.11.2004 for the offences punishable under Sections 498-A and 306 Indian Penal Code whereby he was sentenced to undergo rigorous imprisonment for one year and to pay a fine of ` 1000/- under Section 498-A Indian Penal Code and also to 1 Whether the reporters of Local Papers may be allowed to see the judgment ? - 2 - undergo rigorous imprisonment for a period of three years and to pay a fine of ` 5000/- under Section 306 Indian Penal Code with default clauses. Both the sentences were ordered to run concurrently. (ii) Prosecution story, shorn of unnecessary details, is that deceased Anjana @ Anju d/o PW7 Om Parkash was married to Ashok Kumar accused in village Gatti in the month of November, 1999. After about 5/6 days of their marriage they visited her parents at village Chhater and stayed there for about two weeks. During those days accused was employed in Delhi but however after 2/3 months, left the job and opened a shop in the village. (iii) It is alleged that during first visit of their marriage, deceased Anju revealed to her parents that accused used to beat and harass her on trivial matters and threatened her that he has killed his aunt and could repeat the same thing, thus she thought of committing suicide. But the parents of Anju advised her to observe some constraint and have patience, thus - 3 - sent her to the matrimonial home with a hope that the accused would change and improve his behaviour. (iv) On 5.6.2000 PW7 Om Parkash her father received a telephonic message that his daughter Anju was serious. Next day he visited their village and he came to know that she had died in the hospital after consuming poison. (v) The information was given to the police. Inspector PW11 Anjani Kumar visited hospital and recorded statement Ext. PW7/A of Om Parkash under Section 154 of the Code of Criminal Procedure and the endorsement is Ext. PW11/A for the registration of the case, on the basis of which FIR Ext. PW11/B was registered. (vi) During investigation, Inspector aforesaid prepared site plan Ext. PW11/C and also inquest papers. He took into possession tube of aluminum phosphate which contained 1/3rd insecticide therein, from the house of the deceased vide memo Ext. PW1/A. He also took - 4 - vomittance from the spot vide memo Ext. PW1/A. (vii) Autopsy of the dead body was performed by PW4 Dr. N.K. Sankhayan. He issued post-mortem report Ext. PW5/A. As per his opinion, deceased had died due to asphyxia after consuming some poison. However, final report was reserved till chemical examination. Viscera were preserved and sent for forensic examination. As per report Ext. PW5/B it contained aluminum phosphate and insecticide. Thereafter PW5 Dr. N.K. Sankhayan gave his final opinion Ext. PW5/C about the cause of death. 2. After completing investigation, challan was presented in the Court for the trial of the accused. He was accordingly charge sheeted, tried and convicted for the offences aforesaid, hence the present appeal. 3. Shri N.K. Thkaur, learned counsel for the accused referred to the evidence on record and forcefully argued that though the deceased had committed suicide within 7 years of her marriage but evidence of cruelty and torture, as alleged is not - 5 - proved on record. He further ventilated that as borne out from the record the deceased might have taken poison as she was short-tampered and hyper- sensitive. He further argued that she had insisted upon the accused to re-visit the parental village after 5/6 days of her last visit and accused told her to seek permission from her mother-in-law. What transpired in between was not known to the accused, but it was thereafter she consumed poison and finished her life. He further submitted that first version was given by the deceased in the form of summery recorded by the police in the inquest papers. It is also argued that he took her to the hospital to save her life and sent a message to her parents and her other near relations which shows the bonafide on the part of the accused. He also pointed out from the evidence on record that the real brother of the deceased and her sister were residing at Delhi and the deceased also lived for sometime with her accused husband but there was no complaint. Thus, the theory of maltreatment appears to be the out come of outrageous and spontaneous acts of the parents of the deceased which resulted into his false implication. - 6 - 4. Contra Shri P.M. Negi, learned Deputy Advocate General supported the impugned judgment of conviction and sentence and submitted that the conviction and sentence of the accused require no interference as it is borne out from the evidence on record. 5. I have given my thoughtful consideration to the rival contentions of the parties and have meticulously and cautiously reappraised the evidence on record. 6. There is however, no dispute with respect to date of marriage and commission of suicide by the deceased. Accused has also denied any cruelty or abetment in the commission of the said offence by the deceased. Prosecution seeks to press into service the provision of Section 113-A of the Indian Evidence Act for raising the presumption of cruelty. 7. I am not oblivious that in criminal trial, the degree of proof is stricter than what is required in a civil proceeding. In a criminal trial, however intriguing may be facts and circumstances of the case, the charges made against the accused must be proved beyond all reasonable doubts and the requirement of proof cannot lie in the realm of surmises and conjecturers. The requirement of proof - 7 - beyond reasonable doubt does not stand altered even after the introduction of Section 498-A of the Indian Penal Code and Section 113A of Indian Evidence Act. Although, the court's conscience must be satisfied that the accused is not held guilty when there are reasonable doubts about the complicity of the accused in respect of the offences alleged, it is to be borne in mind that there is no absolute standard for proof in a criminal trial and the question whether the charges made against the accused have been proved beyond all reasonable doubt must depend upon the facts and circumstances of the case and the quality of the evidence adduced in the case and the material placed on record. It is well established that the doubt must be of a reasonable man and the standard adopted must be a standard adopted by a reasonable and just man for coming to a conclusion considering the particular subject matter. [Please see: Gurbachan Singh versus Satpal Singh, AIR 1990 SC 209 & State of West Bengal versus Orilal Jaiswal and another AIR 1994 SC 1418] 8. Further the apex Court in Amalendu Pal @ Jhantu versus State of West Bengal (2010) 1 SCC 707 observed that before holding an accused guilty of an offence under Section 306 of the Indian Penal - 8 - Code, the Court must scrupulously examine the facts and circumstances of the case and also assess the evidence adduced before it in order to find out whether the cruelty and harassment meted out to the victim had left the victim with no other alternative but to put an end to her life. It is also to be borne in mind that in cases of alleged abetment of suicide there must be proof of direct or indirect acts of incitement to the commission of suicide. Merely on the allegation of harassment without their being any positive action proximate to the time of occurrence on the part of the accused which led or compelled the person to commit suicide, conviction in terms of Section 306 of the Indian Penal Code is not sustainable. 9. In order to bring a case within the purview of Section 306 of the Indian Penal Code there must be a case of suicide and in the commission of the said offence, the person who is said to have abetted the commission of suicide must have played an active role by an act of instigation or by doing certain act to facilitate the commission of suicide. Therefore, the act of abetment by the person charged with the said offence must be proved and established by the prosecution before he could be - 9 - convicted under Section 306 of the Indian Penal Code. In other words, there must be direct evidence to show that the accused by his acts provoked the deceased to commit suicide. 10. Now in order to find out whether the accused had abetted the said offence in the instant case or has been guilty of the offence of cruelty, following circumstances appearing in the evidence on record needs to be appreciated. 11. On 5.6.2000 deceased had committed suicide by consuming poison and police was informed. Police visited the hospital, prepared the inquest papers. Accused husband had immediately taken the deceased to the hospital on 5.6.2000. When the police reached in the hospital, she was unconscious and died in the hospital at 7 a.m. on 6.6.2000. At the time of preparing the inquest papers, accused was present. During inquiry, he informed that on the previous day both were together at their residence taking rest, then she expressed her desire to re-visit the house of her parents. On this, accused told her to seek permission from her mother-in-law. On this, she got angry and went to another room and after consuming poison, she came back and told him that she had taken - 10 - poison. She also vomited on the bed, immediately he took her to District Hospital, Bilaspur for treatment, where she died. 12. The evidence on record reveals that a couple of days before the alleged incident she had already spent few days in the house of her parents and had paid visit in the house of their relations at Jawalaji together with other following months. 13. In his statement under Section 313 of the Code of Criminal Procedure, with regard to the incident accused stated that he called his cousin to arrange the vehicle for taking her to hospital and informed his relative and co-villagers about the said incident and he was falsely implicated in this case. PW7 Om Parkash his father-in-law stated that after the marriage, she had visited his place 2/3 times but on the second visit, she was weeping. On being asked she did not tell anything. But on the 3rd visit after about 5/6 months from her marriage, she told that accused used to beat and harass her on trivial matters. At that time, accused was also accompanying him. He was asked not to beat her in future. Anju refused to go to her in-laws house but they intervened and persuaded her to go to her in- laws’ house but accused threatened her that he - 11 - had killed the daughter-in-law of his aunt and also would commit the second murder. But later a compromise was arrived at and accused gave an undertaking not to beat or harass the deceased in any way. On 5.5.2000 cousin of accused informed him telephonically that she was serious and ultimately died of consuming poison. In cross- examination he stated that the marriage of Anju was arranged by the sister of Kishori Lal and his father. Kishori Lal is resident of the same village where Anju was married and according to him he visited the house of Kishori Lal when she had died but Kishori Lal was not examined to substantiate the plea of torture in the house of her in-laws. He further stated that aunt of the deceased was married at Jawali and after marriage of the deceased with the accused, they were not informed by any one about their strained relations even by their villagers, including Kishori Lal. His son Rajinder and son-in-law Kishori Lal aforesaid are employed in Delhi. So long as Anju remained at Delhi with her husband, she never sent any letter or any information regarding their strained relations and also not made any compliant to Rajinder or Kishori Lal, who were also residing at Delhi. - 12 - 14. PW8 Smt. Santosh mother of the deceased also made the similar statement but in cross-examination she admitted that during the marriage of the deceased with the accused, accused was in service in Delhi and left the job after about 3 months of their marriage. During the service period, he did not visit their village. Thus, the allegation of re-visiting the deceased along with accused after 6/7 days of their marriage stands falsified. She further stated that accused met her son Rajinder as well as Kishori Lal during the time when she remained in Delhi in connection with her treatment. Even at that time there was no compliant with respect to strained relations inter se the deceased and the accused. She admitted that one day prior to the visit of Anju for the 3rd time, she along with her husband Ashok Kumar met them at Jawalaji at her sister’s house and she further stated that it was then she made the allegations of cruelty and beatings and thereafter at her house on reaching there. At that time, her sister was not present. She further stated that from Jawalaji they went along with their son Rajinder and daughter Suman to Riwalsar in their own vehicle and next day reached back at their house in the evening and - 13 - further stated that because of the harassment, her daughter consumed poison. 15. PW9 Smt. Suman Sharma is the sister of deceased. According to her, in the month of May, 2000, she visited her parental house. When her younger deceased sister was also there along with her husband, she stayed there for 2/3 days and at that time, she was told that accused used to beat her on patty matters. She was frightened. She advised both of them to live properly and peacefully and accused undertook to improve himself. After about 15 days, they heard about the commission of suicide by her. In cross examination she also stated that when she was staying with her husband at Delhi and accused used to meet them oftenly. She also admitted having visited Jawalaji along with deceased and other family members. During that time deceased and her husband stayed at their aunt’s house at Jawalaji and complained about harassment while weeping. 16. On the scrutiny of the aforesaid evidence, except the statement of parents of deceased and her sister, there is no other evidence on record to show that accused had either abetted or behaved in a cruel manner with her (the deceased). There is - 14 - no corroboration worth the name to their testimonies to support to their case with respect to maltreatment and harassment. 17. PW3 Ram Pal taxi driver stated that he took the deceased in his taxi to the hospital. At that time Kuldeep was also with them and accused asked him to immediately inform her parents regarding the incident. 18. Whereas, PW1 Shanti Devi, Ward Member of the Panchayat where the deceased was married was also Pradhan of Mahila Mandal. According to her, she did not hear about the quarrel between the deceased and the accused during the period of their married life. She denied having given any statement to the contrary to portion Ext.DA with which she was confronted. Similar is the statement of PW2 Om Parkash of their village. 19. PW10 Chuni Lal also did not support the case of the prosecution. His house is adjoining to the house of the accused despite having dispute with the accused, he turned hostile. 20. On culling the aforesaid evidence, the evidence of cruelty is not worth inspiring confidence. It appears that after the death of Anju, the attitude of her parents and sister became adverse to the - 15 - accused. The deceased had expressed her desire to re-visit them and as per earlier version given by the accused to police, and he asked her to seek permission from her mother-in-law. In this fact situation, it would not be an abetment offered by the accused which could be held sufficient to convict him for the offence punishable under Section 306 of the Indian Penal Code. It does not create any substantial right in absence of cogent evidence with respect to cruelty and abetment. Therefore, under these circumstances, and the fiction created by Section 113-A of the Evidence Act particularly when cruelty and abetment to commit suicide stands not proved, the conviction cannot be sustained. The circumstances appearing on record, in the light of the above legal position do not necessarily lead to the inference that she had no other option except to end her life and that accused could be deemed to have provoked her to commit suicide. 19. Considering all these aspects, inferences and proof taken by the learned trial court of the abetment, are not on the standard of proof beyond reasonable doubt. Even deep suspicion about it cannot take the place of proof. - 16 - 20. The net result of the above discussion is that the conviction and sentence for the offences aforesaid passed by the learned trial Court are set aside. Appeal is accordingly allowed. Accused is acquitted of both the charges by giving him the benefit of doubt. 21. The accused is on bail. He is discharged of his bail bonds. December 6, 2011 (Surinder Singh), (cm) Judge.