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2012 DIGILAW 449 (HP)

Chatro Ram v. State of Himachal Pradesh

2012-08-24

SURINDER SINGH

body2012
JUDGMENT Surinder Singh, J: Appellants Chatro Ram, Bajiru Ram and Bhagat Ram, were charge-sheeted, tried and convicted for the offence punishable under Section 306 read with Section 34 of the Indian Penal Code and each of them sentenced to undergo simple imprisonment for a period of three years and to pay fine of Rs..2,000/- each with default clause. Feeling aggrieved, they filed the instant appeal. 2. During proceedings of this appeal, Appellant Chatro Ram, father-in-law of the deceased Kisso @ Krishna had died and an application was moved on behalf of learned counsel for the appellants to delete his name as none of the legal representatives came forward to continue with the appeal, which was allowed vide order dated 14.8.2012. The appeal was pursued and argued only on behalf of appellants Bajiru Ram, husband and Bhagat Ram, brother-in-law of the deceased, now referred as accused persons hereinafter. 3. In short, the prosecution story is that Kisso @ Krishna, hereinafter referred to be as “the deceased” was real sister of PW1 Ramesh Kumar and PW3 Atma Ram. She was married to accused Bajiru Ram in village Beli (Badhalu), District Chamba about 10/11 years prior to her death. It is alleged that the accused persons have been harassing her on the ground that she was having illicit relations with Tilak Raj son of accused Bhagat Ram, thereby causing her physical and mental torture, compelling her to commit suicide on 26.12.1999 by consuming a portion of aluminium phosphate, an insecticide. (ii) The deceased was removed to the hospital, where she was examined by PW8 Dr. Subhash Chauhan. She was unconscious and could not survive. Her MLC is Ext.PJ. Ultimately she died. (iii) On 27.12.1999, PW1 Ramesh Kumar was informed telephonically about her death. Her dead-body was lying in the Zonal Hospital, Chamba. He visited the hospital and reported the matter to the police, in terms of his statement Ext.PA, recorded under Section 154 of the Code of Criminal Procedure, which culminated into FIR Ext.PO. (iv) PW17 Inspector/ SHO Sita Ram prepared the inquest report Ext.PQ/3 and applied for the postmortem, which was conducted by Dr. Rakesh Raina. The post-mortem report is Ex.PQ/1 proved by PW16 Dr. Brij Bala Sharma, Senior Medical Officer. (iv) PW17 Inspector/ SHO Sita Ram prepared the inquest report Ext.PQ/3 and applied for the postmortem, which was conducted by Dr. Rakesh Raina. The post-mortem report is Ex.PQ/1 proved by PW16 Dr. Brij Bala Sharma, Senior Medical Officer. The Chhailo Devi neighbour of the deceased, PW6 Kewal Singh, a student of the school who was sent by the deceased to inform her brother Ramesh Kumar, PW7 Bhagat Ram, who had noticed the deceased vomiting and she had handed over the poison tube to him which was kept in the wall and also PW9 Rakesh Kumar, Junior Assistant from the office of Conservator of Forests to prove that the representation made by the deceased to pay half of the salary of her husband to her and PW10 Urmil Saini to prove that the accused Bajiru Ram was serving in the office of DFO, Chamba besides examining the doctors and other official witnesses viscera of the dead-body was preserved and sent for the forensic examination vide report Ext.PP which confirmed the consumption of aluminium phosphate by the deceased. (v) During investigation, police recovered the remaining tablets of said insecticide, which were taken into possession. Photographs of the dead-body were clicked, site plan was prepared and statements of the witnesses were recorded. 4. After completing investigation, challan was presented in the Court for the trial of the accused persons. Finding a prima-facie case against the accused persons, they were accordingly charge-sheeted for the offence aforesaid, to which they pleaded not guilty and claimed trial. 5. To prove its case, prosecution examined PW1 Ramesh Kumar, brother of the deceased, PW2 Nidhia Ram, Up-Pradhan of the Gram Panchayat regarding the alleged torture and recovery, PW3 Atma Ram another brother of the deceased who was an employee of the police department, PW4 Duni Chand witness to the recovery of the insecticide, PW5 Smt. 6. Accused persons were also examined under Section 313 of the Code of Criminal Procedure. Their case was denial simplicitor. According to them, the complainant party was inimically disposed of towards them and they were falsely implicated in this case. 7. When called upon to lead the evidence in defence, they did not lead any evidence. Accused persons were also examined under Section 313 of the Code of Criminal Procedure. Their case was denial simplicitor. According to them, the complainant party was inimically disposed of towards them and they were falsely implicated in this case. 7. When called upon to lead the evidence in defence, they did not lead any evidence. However, the stand taken by the accused persons as is made out from the cross-examination of the prosecution witnesses is that the brothers of the deceased had been pressing hard the deceased, to seek divorce from her husband accused Bajiru Ram for which Bajiru Ram accused did not agree as he had immensely loved her. It was also alleged that there was some abrasion in the matrimonial relations, which were patched up long back and there was no cause or abetment to her to commit suicide. 8. Learned trial Court did not agree with it, but however relying upon the prosecution evidence, convicted and sentenced them, as aforesaid, hence the present appeal. 9. Shri Anup Chitkara, learned counsel for the appellants, vehemently argued that there is not even an iota of evidence to show about any abetment by the accused persons, which compelled her to commit suicide. He referred to the statements of the witnesses on record and submitted that the evidence led by the prosecution is self destructive and contradictory. 10. Contra, Shri P.M. Negi, learned Deputy Advocate General, vehemently argued that the offence charged stands proved against the accused persons and while supporting the impugned judgment of conviction and sentence submitted that there is no fault in appreciating the evidence by the learned trial Court and thus the appeal deserves outright dismissal. 11. To appreciate the rival contentions of the parties, I venture to examine and reappraise the evidence on the record. 12. Admittedly, Bajiru Ram accused was a class-IV employee working in the office of DFO, Chamba. The evidence on record reveals that he was a liquor addict and the deceased was fed up with his addiction, since he spent his earning on liquor and she remained financially tight. 12. Admittedly, Bajiru Ram accused was a class-IV employee working in the office of DFO, Chamba. The evidence on record reveals that he was a liquor addict and the deceased was fed up with his addiction, since he spent his earning on liquor and she remained financially tight. Thus, she moved an application Ex.PE to the Conservator of Forests for making payment of half of his pay, which was allowed vide office order dated 22.4.1999, Ext.PK, subsequently, she moved another application Ex.DA dated 26.4.1998 and requested that the entire pay be disbursed to her husband and she was not interested for half pay any more, she being an illiterate lady was instigated by her brothers to make earlier representation and she was happy and satisfied with her husband, who had improved himself because of the intervention of the authorities and had left the liquor addiction. 13. PW9 Rakesh Kumar, Junior Assistant from the office of the Conservator of Forests had scribed the complaint Ext.PE, purportedly at the behest of the deceased. In cross-examination, he admitted that her brother PW3 Atma Ram who was working in the Police Department was accompanying her. He further stated that again on 26.4.1999 deceased alongwith her husband visited the office and she stated that they were happy and she did not want half share in the salary of her husband and asked him to write another application for her. He further stated that the deceased had told him that the earlier application was at the behest of her brother Atma Ram (PW3). 14. PW1 Ramesh Kumar admits in his statement that Bajiru Ram his brother-in-law was habitual drunkard and a complaint has been made by his wife to the concerned authorities that because of his addiction, she was financially tight. After three years, he was transferred to Chamba, but he did not leave his addiction to liquor. Thereafter, she moved an application to release half of the salary to her to meet out the daily expenses. Pertinently, he stated that the accused was not harassing his sister. According to him, it was only Chatro Ram accused (now deceased) the father-in-law of the deceased who alleged illicit relation with his grand son Tilak Raj son of his another son Bhagat Ram accused. Pertinently, he stated that the accused was not harassing his sister. According to him, it was only Chatro Ram accused (now deceased) the father-in-law of the deceased who alleged illicit relation with his grand son Tilak Raj son of his another son Bhagat Ram accused. He further stated that Bhagat Ram accused was also not harassing his sister, but supported his father, however, he never gave any beatings to her. He also stated that he alongwith PW3 Atma Ram, visited the house of the accused persons and asked the reasons for harassing his sister. Even at that time, both Chatro Ram and Bhagat Ram imputed the allegations of illicit relations with Tilak Raj. On this, he insisted to take his sister to his house and seek divorce from her husband. But however, when his deceased sister was ready to leave the house, then the accused persons told him that they would not harass or beat her in future. Since he had exonerated Bajiru Ram completely, he was declared hostile and cross-examined by the learned Public Prosecutor, but he disowned his statement Ext.PA against Bajiru Ram and further stated that he was innocent, though he stated that he was bringing up his nephew (Bhanja). In his cross-examination by the accused, he admitted that the accused Bajiru Ram was looking after the deceased very well. He was also confronted with his statement Ext.PA with respect to the allegation of illicit relations with Tilak Raj having been imputed by the accused persons or defamed her wherein it was not so recorded. He further admitted that the accused Chatro Ram and Bhagat Ram never maltreated or harassed his sister even in his presence. He admitted that all the last rites of his deceased sister were performed by the accused Bajiru Ram and also that the complainant party insisted upon the accused Bajiru Ram to give divorce to his sister, to which he flatly refused. Thus this witness had blown hot and cold in his statement and there is no consistency in his statement to support the prosecution story. 15. PW3 Atma Ram was a constable in Police Department. Thus this witness had blown hot and cold in his statement and there is no consistency in his statement to support the prosecution story. 15. PW3 Atma Ram was a constable in Police Department. He stated that because of the liquor addiction of Bajiru Ram, his sister was financially tight, as such she made a representation Ext.PE to the Conservator of Forests for the disbursement of his half pay to her and stated about complaint made to the Conservator for seeking half pay of her husband. Regarding the imputation of illicit relation, he was confronted with his statement Ext.DA under Section 161 of the Code of Criminal procedure to this effect, which fact was not so found recorded. He admitted that all the accused persons were living separately from each other and Bajiru Ram accused had been providing maintenance to the deceased and both were living together at Shimla and Chamba. He also admitted that the accused persons neither harassed or gave any beatings to the deceased in his presence nor called any person from the village of the accused for settling the matter and he had only made the above statement at the instance of his brother. Thus, his statement is also not enough to prove the charge. 16. PW2 Nidhia Ram, Up-Pradhan did not support the case of the prosecution, though he stated that on 28.11.1999, the brothers of the deceased came to his house and informed him that their brother-in-law used to beat their sister and he should accompany them. He went to the house of the accused persons and Bhagat Ram told them to take the deceased to the matrimonial home and they would not be responsible if any mis-happening takes place with the deceased. This statement would not prove any abetment of the accused. In cross-examination by the learned Public Prosecutor, he stated that the deceased told that Tilk Raj was like her own son and the allegations against her were false. In the cross-examination by the accused persons he admitted that the brothers of the deceased, namely Ramesh Kumar and Atma Ram aforesaid did not make any application to him in respect of any mal-treatment or misbehaviour and also admitted that the brothers of the deceased were impressing upon the accused Bajiru Ram to seek divorce from the deceased to which he declined. He further admitted that the deceased never complained regarding mal-treatment or being harassment to be meted out at the hands of the accused persons. 17. PW5 Smt.Chhailo Devi is the neighbour of the accused persons. According to her, accused persons were making allegations against the deceased about illicit relations with her nephew and they had been coxing her either to leave the matrimonial home or commit suicide by consuming poison. She further stated that on 23.12.1999, the deceased met her and complained about harassment on the false allegations and decided to commit suicide. In cross-examination she admitted that the accused persons and her relatives are living separately. She also admitted having some litigation with them, but matter was patched up by a compromise. She further admitted that she had instituted a case in the Court of Sub-Divisional Magistrate for the breach of peace as the accused persons were threatening her, however, she denied having instituted 5/6 cases against them, but admitted lodging of two criminal cases, out of which one was dismissed and another was compromised. She admitted that she was not in visiting terms in the house of accused persons for the last about six years. Though she stated that the accused persons had been quarrelling with the deceased, but when confronted with her statement Ext.DC recorded by the police during investigation, this fact did not find mentioned. She also stated that she did not disclose about the conversation which took place between her and deceased prior to her death to any one. Thus, her impugned version and enmity with the accused persons make her version doubtful. 18. PW6 Kewal Singh was a student of 6th standard , who has stated that on 24.12.1999, one Sonia studying in his class informed him that the deceased had sent a message to her brothers to come to her matrimonial house as soon as possible which was conveyed by him on 25.12.1999. On 27.12.1999, he came to know that his deceased aunt had consumed poison. 19. PW7 Bhagat Ram stated that he was informed by the deceased that she had taken poison and the tube was kept by her in the retaining wall. She led him to the wall and took out the poison tube and handed over to him which he further handed over to Chatro, father-in-law of the deceased. 19. PW7 Bhagat Ram stated that he was informed by the deceased that she had taken poison and the tube was kept by her in the retaining wall. She led him to the wall and took out the poison tube and handed over to him which he further handed over to Chatro, father-in-law of the deceased. He denied any harassment or ill-treatment by the accused persons to the deceased. He disowned his statement contrary to it when confronted by the learned Public Prosecutor after declaring him hostile. He stated in cross-examination that he had asked the deceased as to why he consumed the poison, then she replied that she had consumed it of her own. 20. On the critical examination of the evidence aforesaid, I do not find any clinching evidence qua abetment offered by the accused persons to the deceased to compel her to finish herself. She might be fed up with the liquor addiction of her husband on which he had been squandering his salary, as such, she was compelled to move an application to the Conservator of Forests for half salary from his pay to her to meet out the daily expenses, but this dispute was also reconciled, ultimately she withdrew her complaint on 22.4.1999 and the pay of Bajiru Ram was restored as her husband had mend his ways. This all had happened in the month of April, 1999. In her application Ext.DA, she has also made a reference that the earlier complaint was made by her at the behest of her brothers, but anyhow the entire matter was patched up in the month of April,1999. It also stands established as already stated above that the accused persons were living separately from each other and none of the witnesses had seen them even beating or mal-treating the deceased. It is proved that the brothers of the deceased, namely PW1 Ramesh Kumar and PW3 Atma Ram were insisting upon the deceased to seek divorce from accused Bajiru Ram to which she as well as Bajiru Ram had resented, meaning thereby that both of them were happy and satisfied in the company of each other. It is proved that the brothers of the deceased, namely PW1 Ramesh Kumar and PW3 Atma Ram were insisting upon the deceased to seek divorce from accused Bajiru Ram to which she as well as Bajiru Ram had resented, meaning thereby that both of them were happy and satisfied in the company of each other. In Ext.PA , the initial statement made by the complainant Ramesh Kumar, he has stated that it was accused Bajiru Ram who had been torturing and mal-treating the deceased on the allegation that she had illicit relations with her nephew Tilak Raj, but this fact was told to him by other accused persons is denied by the complainant himself. There is absolutely no evidence on record to show as to what had happened from April, 1999 till the deceased consumed the poison or what was the reason, by which the deceased decided to finish her life. According to the case of the prosecution, it was deceased, who had informed her brothers to visit immediately on the morning of 25th December, 1999, just a day before taking poison. The cause stands unexplained and unknown. There is no mal-treatment or harassment proximate to the time of occurrence by the accused persons. 21. In other words, 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 acts 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 convicted for the said offence. 22. The expression abetment has been defined under Section 107 of the Indian Penal Code. A person is said to have abet the commission of suicide when a person instigates any person to do that thing as stated in clause Firstly or to do anything as stated in clauses Secondly or Thirdly of Section 107 of the Indian Penal Code. Section 109 of the Indian Penal Code provides that if the act abetted is committed pursuant to and in consequence of abetment then the offender is to be punished with the punishment provided for the original offence. 23. Section 109 of the Indian Penal Code provides that if the act abetted is committed pursuant to and in consequence of abetment then the offender is to be punished with the punishment provided for the original offence. 23. Before holding an accused guilty of an offence under Section 306 of the Indian Penal Code, it is for the Court to 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 commit suicide. In case of alleged abetment of suicide, as held by the Supreme Court in Amalendu Pal Alias Jhantu versus State of West Bengal [ (2010) 1 SCC 707 ] there must be proof of direct or indirect acts of incitement to the commission of suicide. Merely on the allegation of harassment without there 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. 24. Against the above legal backdrop and factual scenario, in my considered opinion, it is not a case of abetment of suicide made out against the accused- appellants as provided under Section 107 of the Indian Penal Code. There is also no evidence to this effect that any of the accused persons had abetted the commission of suicide by playing an active role by act of instigation or by doing certain acts to facilitate the commission of the suicide within the meaning of Section 306 of the Indian Penal Code. Therefore, for the reasons aforesaid, the findings of guilt returned by the learned trial Court are set-aside. Consequently, the appeal is allowed and the accused persons are acquitted for the offences charged by giving them the benefit of doubt. Their sentence stands already suspended on executing the bonds; therefore, the bonds so furnished stand discharged. The appeal is disposed of accordingly. 25. Send down the records.