IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.Appeal No. 483 of 2002. Judgement reserved on: 13.8.2009 Date of decision: 10.9.2009 Surender Kumar …….Appellant Vs. State of H.P. …. Respondent Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting?1 Yes For the Appellant : Mr. Neeraj Sharma, vice Mr. Jagdish Vats, Advocate. For the Respondent : Mr. Anshul Bansal, Addl. Advocate General. Kuldip Singh, Judge. This appeal has been directed against the judgment dated 23.7.2002 passed by learned Sessions Judge, Kinnaur Sessions Division at Rampur Bushahr, Camp at Reckong Peo in Sessions Trial No.16 of 2001 convicting the appellant under Sections 306, 498-A IPC and sentencing him to undergo rigorous imprisonment for 5 years and fine of Rs.1000/- under Section 306 IPC, rigorous imprisonment for 2 years and fine of Rs. 1000/- under Section 498-A IPC. In default of payment of fine further simple imprisonment for 3 months each. The substantive sentences of imprisonment were ordered to run concurrently. Whether the reporters of the local papers may be allowed to see the Judgment?Yes …2… 2. The prosecution case in brief is that on 27.8.1999 in the morning, the dead body of Sangya Devi was noticed hanging in her verandah by PW-2 Shishi Ram, who reported the matter to police vide report No.6, copy Ex.PW-2/A, Police Station, Bhabanagar. PW-6 Gian Chand ASI took photographs, untied the rope with which the dead body of Sangya Devi was hanging. The Postmortem on the dead body of Sangya Devi was conducted by PW-8 Dr. D.S. Duttal on 28.8.1999 who issued postmortem report Ex.PW-8/A. PW-1 Tula Ram lodged written complaint Ex.PW-1/A on 28.8.1999 to Incharge, Police Station, Bhabanagar and there upon FIR Ex.PW-6/D was registered at Police Station, Bhabanagar. PW-6 Gian Chand ASI and PW-10 Ramesh Chand ASI conducted the investigation and on completion of investigation challan was presented in the Court for offence punishable under Sections 306, 498-A IPC. 3. The appellant was charged for offence punishable under Sections 306, 498-A IPC. The appellant pleaded not guilty and claimed trial. The prosecution has examined 10 witnesses and produced documentary evidence. The statement of appellant was recorded under Section 313 Cr.P.C, he denied the prosecution case. The appellant did not lead any evidence in defence. The learned Sessions Judge on 23.7.2002 convicted and sentenced the appellant as noticed above, hence appeal by the accused. 4. PW-1 Tula Ram is the father of Sangya Devi. He has stated that Sangya Devi had married with accused in the year …3… 1993. They lived together in village Chaura, two sons were born to them from the wedlock. The accused treated his daughter well for 1, 2 years. Thereafter he started his daughter treating with cruelty. The accused performed another marriage in 1999. The deceased and her child were compelled to apply maintenance under Section 125 Cr.P.C. which was compromised on 4.8.1999 and the accused was directed to pay Rs.600/- per month to his daughter and her child. In the alternative the accused was directed to take his daughter and her child to his house. The accused took his daughter and her child in his house in village Chansu (Kafor). The deceased and her child had accompanied the accused to his house on 5.8.1999. They lived together till 23.8.1999. On 23.8.1999 his daughter and her younger son came to him and accompanied with the accused to his house on 26.8.1999. On that date accused left for the house of the parents of his second wife. On 27.8.1999 in the evening he was informed that his daughter had died as a result of hanging. He lodged complaint Ex.PW-1/A on 28.8.1999. The accused had been treating his daughter with cruelty on the ground that they had not been able to provide sufficient dowry to the accused at the time of his marriage. In cross-examination he has stated that he had dictated complaint Ex.PW-1/A to the petition writer. 5. PW-2 Shishi Ram is the father of the accused. He has stated that his son had performed second marriage and thereafter third marriage. He reported the matter to police vide rapat No.6 Ex.PW-2/A on 27.8.1999. After the birth of the …4… children Sangya Devi had turned mentally unwell. In cross- examination he has stated that he had taken Sangya Devi to local deities for treatment of mental ailment. He has stated that bigamy is in vogue in Kinnaur District. 6. PW-3 Shyama Nand, aged 82 years has stated that in the year 1999 he was member of Gram Panchayat Chaura. In cross-examination he has stated that it is correct that bigamy is in vogue in Kinnaur District and is recognized by custom as well. 7. PW-4 Jeet Ram brother of deceased Sangya Devi has stated that accused had been treating his sister with cruelty. He had been charging that they had not given him sufficient dowry at the time of marriage of Sangya Devi. The accused had performed another marriage with Fulla Devi and had turned his sister and her younger child out of his house. In cross- examination he has stated that his sister was not keeping fit physically. 8. PW-5 Chandermani remained Pardhan of Gram Panchayat Chansu from 1995 to 2000. Thereafter she remained Chairman of Panchayat Samiti, Kalpa. She has stated that Sangya Devi had informed her that her (Sangya Devi) husband wanted to go in for second marriage. The accused had also informed her that parents of Sangya Devi had not given sufficient dowry at the time of her marriage with accused. The husband of Sangya Devi had been treating her with cruelty on the ground for not providing sufficient dowry. …5… 9. PW-6 Gian Chand, Sub Inspector. I.R.B. Una is the Investigating Officer who partly investigated the case. PW-7 Fulla Devi has stated that she had married with accused on 4/5.5.1999. The accused had not settled the dispute with first wife, therefore, she left the house of accused on 19.7.1999. The accused had been visiting her. She had given birth to one child from accused. She is not living with the accused now as he has married third time with Satya Devi. 10. PW-8 Dr. Digvijay Singh Dattal has performed the postmortem on the dead body of Sangya Devi and issued postmortem report Ex.PW-8/A. PW-9 Sanjay Chandel is a formal witness. PW-10 Ramesh Chand ASI has also investigated the case. 11. Heard and perused the record. The learned counsel appearing on behalf of the appellant has submitted that learned Sessions Judge has misconstrued and mis-interpreted the evidence on record in light of law applicable in the matter. The appellant never treated Sangya Devi with cruelty nor alleged cruelty otherwise has been proved. The appellant was not in the house even as per the case of the prosecution on the intervening night when Sangya Devi took extreme step to end her life. The learned Sessions Judge has erred in convicting and sentencing the appellant, who on the basis of material on record is entitled to acquittal. The learned Addl. Advocate General has supported the impugned judgment. …6… 12. Ex.PW-2/A rapat No.6 dated 27.8.1999 was recorded at 11.30 a.m. at the instance of PW-2 Shishi Ram father of the appellant. As per rapat Ex.PW-2/A, appellant and Sangya Devi were married four years ago and had one boy and one girl from the marriage. The accused was living separately from his father. The relations between appellant and Sangya Devi were not cordial and therefore, Sangya Devi had been living in her parents house at Chansu. The accused had solemnized another marriage. Sangya Devi had filed a case in the Court of Chief Judicial Magistrate and on 4.8.1999 the Court had awarded Rs.600/- per month maintenance to Sangya which was to be paid by the appellant or the appellant was directed to take back Sangya. On this, the appellant had agreed to take Sangya back and Sangya and appellant on 7.8.1999 came to Kafor and were living together. The second wife of the appellant resides at her parent’s house. On 23.8.1999 the appellant and Sangya had gone to Sangya’s parents house at Chansu and returned to Kafor on 25th in the evening. On 26.8.1999 morning appellant left Sangya and proceeded to the house of his second wife at Arshu, Tehsil Nirmand. Sangya was alone in the house. 13. Ex.PW-6/D is the FIR under Section 306 IPC. The police filed an application Ex.PW-8/B and had requested PW-8 Dr. D.S. Duttal to conduct postmortem examination on the dead body of Sangya Devi. The application Ex.PW-8/B was received by doctor on 28.8.1999 at 11.30 a.m. The postmortem on the dead body of Sangya Devi was conducted on 28.8.1999. The …7… doctor has given probable duration between incident and death instantaneously and between death and postmortem more than 12 hours. Ex.PW-1A is the written complaint submitted by PW-1 Tula Ram to Incharge, Police Station, Bhabanagar alleging therein that Surender Kumar had not good relations with Sangya Devi. Surender Kumar had solemnized second marriage but in view of Court order he was looking after Sangya Devi and they were living together. Surender Kumar used to abuse and give threats of beatings to Sangya Devi. It has been alleged in Ex.PW-1/A that Surender Kumar after murdering Sangya Devi hanged her and ran away from the scene. 14. Section 306 IPC covers the offence of abetment of suicide. Section 498-A IPC makes punishable cruelty by husband or a relative of the husband of a woman in certain situations. Section 107 is of abetment. Therefore, the case of the prosecution is to be considered in the light of aforesaid provisions. PW-1 Tula Ram father of Sangya Devi in his written complaint Ex.PW-1/A has stated that Sangya Devi and appellant were married in the year 1993. They were not on good terms. The appellant had solemnized second marriage. In view of Court order the appellant started looking after and living with Sangya Devi. The appellant used to abuse and give threats of beatings. In Ex.PW-1/A Tula Ram has suspected that appellant had killed Sangya Devi and thereafter hanged her. PW-1 Tula Ram in his statement has nowhere given instances of cruelty of appellant towards Sangya Devi. He has not stated that on the intervening …8… night of 26 / 27.8.1999 or immediately prior to that appellant treated Sangya Devi with cruelty. 15. In Ex.PW-2/D rapat No.6 it has been stated that deceased and appellant came to their residence on 25.8.1999 at Kafor. On 26.8.1999 appellant left Sangya Devi and went to his second wife at Arshu, Tehsil Nirmand. PW-1 has stated that appellant had been treating his daughter with cruelty on the grounds that they had not given sufficient dowry to the appellant at the time of marriage. In written complainant Ex.PW-1/A addressed to Incharge, Police Station, Bhabanagar PW-1 has not stated that appellant had been treating his daughter with cruelty as they had not given sufficient dowry to him at the time of her marriage. Therefore, statement of PW-1 regarding cruelty on account of dowry in the Court is an improvement. 16. In application under Section 125 Cr.P.C. dated 26.5.1999 which was filed by Sangya Devi and her son against appellant the expressions of cruelty and maltreatment by accused were used and it was also pleaded in Ex.PW-1/C that the applicants were also turned out from the house on 5.5.1999 but there is no allegation in the application that any demand of dowry was made by the appellant. There is no specific allegation that appellant had given beatings to Sangya Devi. It appears the application Ex.PW-1/C was filed on the ground that appellant had married second time in presence of his marriage with Sangya Devi. The joint statement Ex.PW-1/D of parties was recorded on 4.8.1999 and learned Chief Judicial Magistrate, Kinnaur vide …9… order Ex.PW-1/E disposed of the maintenance application by ordering that appellant would keep both the applicants with him properly in future and if he would not keep them properly then he would be liable to pay maintenance allowance in the sum of Rs.300/- per month each to both the applicants. It is the prosecution case that thereafter appellant and deceased started living together. In other words the appellant decided to comply with the order dated 4.8.1999 Ex.PW-1/E. The past differences, if any, between the appellant and Sangya Devi were resolved when both of them made joint statement Ex.PW-1/D in the maintenance application and on the basis of their joint statement, learned Chief Judicial Magistrate decided the maintenance application vide order dated 4.8.1999 Ex.PW-1/E. 17. There is nothing on record that in between 4.8.1999 and 26/27th.8.1999 appellant created such circumstances which compelled Sangya Devi to commit suicide. In the facts and circumstances of the case past indifferent conduct of appellant, if any, cannot be construed to be the reason forcing Sangya Devi to commit suicide. The prosecution has failed to prove demand of dowry or cruel treatments of appellant towards Sangya Devi in between 4.8.1999 to 26/27.8.1999. 18. The learned Sessions Judge in para-18 of the impugned judgment has observed that the conduct of husband having extra-marital relations definitely amounts to such willful conduct on the part of the husband which can in the given circumstances, drive the wife to commit suicide or to act in a …10… manner which may cause grave injury or danger to her life, limb or health, mental as well as physical. Thereafter the learned Sessions Judge has observed that accused in the face of opposition from his first wife had gone in for second marriage and after the death of first wife the accused had gone in for third marriage with one Satya Devi. The learned Sessions Judge has taken the proceeding under Section 125 Cr.P.C. of Sangya Devi against the appellant as a part of cruelty. 19. The learned Sessions Judge has not appreciated that the proceeding under Section 125 Cr.P.C. was compromised between the accused and Sangya Devi and at their instance consent order dated 4.8.1999 Ex.PW-1/E was passed by learned Chief Judicial Magistrate. The learned Sessions Judge has also observed that in view of second marriage of appellant with Sumitra Devi the accused has abetted the suicide of Sangya Devi. Sangya Devi was aware of the marriage of Sumitra Devi with accused and the fact that the accused had married second time with Sumitra Devi has been pleaded in the maintenance application Ex.PW-1/C. The maintenance application was prepared on 25.5.1999 and Sangya Devi had committed suicide in the intervening night of 26/27.8.1999. Therefore, it cannot be said that second marriage of accused with Sumitra Devi is the immediate cause of committing suicide by Sangya Devi and in other words by second marriage the accused had abetted suicide of Sangya Devi. …11… 20. It has come on record that in the area to which the accused and Sangya Devi belong, it is not uncommon for a male to solemnize more then one marriage. Psyche of individual is influenced by the culture of the society in which he or she lives. PW-2 Shisi Ram has stated that bigamy is prevalent in Kinnaur District, Similarly PW-2 Shyama Nand aged 82 years who remained member of Gram Panchayat Churah Village, Kafor has stated that bigamy is prevalent in Kinnaur District and is recognized by custom as well. It is thus clear that for a male to have more then one wife was a part of custom and culture of the society of accused and deceased. In these circumstances, it cannot be said that the second marriage of the accused was the cause for Sangya Devi to commit suicide and for this reason appellant cannot be blamed to have abetted the suicide of Sangya Devi. The prosecution has not brought on record evidence so as to bring the case within the ambit of abetment as provided in Section 107 IPC. In Ram Partap vs. State of M.P. 2004 (3) RCR (Criminal) 441 the High Court of Madhya Pradesh has held that illicit relationship itself is not sufficient to hold the appellant to be guilty of the offence punishable under Section 306 IPC. The illicit relationship though not proved may be a reason for suicide, but cannot be said to be abetment which requires a positive step to be taken by persons to induce the commission of the offence. The learned Sessions Judge has not properly appreciated the evidence on record for convicting and sentencing the appellant …12… under Sections 498-A and 306 IPC and therefore, impugned judgment of conviction and sentence is liable to be set aside. 21. The result of the above discussion, the appeal is allowed, judgment of conviction and sentence dated 23.7.2002 passed by learned Sessions Judge, Kinnaur Sessions Division at Rampur Bushahr, Camp at Reckong Peo in Sessions Trial No.16 of 2001 is set aside. The appellant/accused is acquitted of the charge. The fine amount, if any deposited by the appellant / accused be refunded to him, his bail bonds are discharged. ( Kuldip Singh ) Judge. September 10, 2009 (sks/gr)