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2013 DIGILAW 137 (PNJ)

Josna v. State of Haryana

2013-02-06

Naresh Kumar Sanghi

body2013
JUDGMENT Mr. Naresh Kumar Sanghi, J.: - Crl.Misc.No. 51715 of 2011 In view of the grounds mentioned in the application which is supported by an affidavit, delay of 167 days in filing the application for special leave to appeal is condoned. Criminal Miscellaneous Application stands disposed of. CRM-A-813-MA-2011 1. The present application under Section 378(4) of the Code of Criminal Procedure has been presented for grant of leave to appeal. 2. Brief facts of the case are that Balbir Singh (deceased), husband of Smt. Josna-PW9 (applicant-complainant), was an employee with Umar Singh (respondent-accused). He (Umar Singh) levelled allegation against Balbir Singh (deceased) that he had stolen Rs.7,00,000/- in cash. On the complaint of Umar Singh, Balbir Singh was summoned to the police station. However, Umar Singh got Balbir Singh released from the police on the same day and brought him to his house. On 14.10.2009, Umar Singh was mounting pressure on Balbir Singh to confess the stealing of the cash amount and during that course Umar Singh gave a slap to Balbir Singh. On that night, they slept at about 3.00 A.M and when the applicant, Josna, woke up at 5.00 A.M., she did not find her husband in the residential area. In the day time, she came to know that police was present in the greenbelt of Sector 3, Kurukshetra, she went there and found that dead body of her husband, Balbir Singh, was hanging on the tree. On the basis of the statement suffered by applicant Josna, FIR No.288, dated 15.10.2009, for the offence punishable under Section 306 of the Indian Penal Code was registered against respondent No.2 Umar Singh. After completing the formalities of the investigation, charge sheet was presented before the learned Area Judicial Magistrate who finding a prima facie case, committed the case to the court of Session for trial. 3. Learned trial court found sufficient grounds for presuming that the respondent-accused had committed the offence punishable under Section 306, IPC, therefore, the charge thereunder was framed to which, the respondent-accused pleaded not guilty and claimed trial. 4. In order to substantiate its allegations, the prosecution examined as many as 13 witnesses. Applicant Josna appeared as PW9 and reiterated the version as stated to the police. 5. 4. In order to substantiate its allegations, the prosecution examined as many as 13 witnesses. Applicant Josna appeared as PW9 and reiterated the version as stated to the police. 5. After completion of the prosecution evidence, the incriminating evidence was put to the respondent-accused in terms of Section 313, Cr.P.C. to which he pleaded false implication and claimed innocence. No evidence in defence was produced. 6. After hearing the parties, the learned trial court acquitted the respondent-accused by making the following observations:- “In the present case, Balbir Singh died unnatural death, i.e. he died due to hanging to a tree with a rope. The only material witness in this case is Smt. Josna wife of deceased Balbir Singh. It was on her statement made to the police on 15.10.2009 that the present FIR was registered. The accused Balbir Singh died on the night intervening 14/15.10.2009. In her deposition before the court, Josna (PW9) stated in unequivocal terms that the theft had taken place in the house of the accused on 12.9.2009 and that her deceased husband Balbir Singh had been got summoned to the police station by the accused on 13.9.2009 but on the same day, he had been got released at about 5.00 P.M. and brought back to his house by the accused. She further stated that her deceased Balbir Singh was given beating by the accused from 8.00 P.M. to 2.30/3.00 a.m. in the night and on the following day, her husband had committed suicide. As per the deposition of this witness, there is a difference of one month between the alleged beating and the suicide. There is no positive evidence on the file to prove that deceased Balbir Singh had, in fact, been summoned to the police station at the instance of the accused at any point of time. There is also no written complaint produced on the file, which may have been made by the accused against deceased Balbir Singh. A perusal of the inquest proceedings conducted under Section 174, Cr.P.C. goes to show that there was no mark of any injury on the person of deceased Balbir Singh except that he had died by hanging. There is also no written complaint produced on the file, which may have been made by the accused against deceased Balbir Singh. A perusal of the inquest proceedings conducted under Section 174, Cr.P.C. goes to show that there was no mark of any injury on the person of deceased Balbir Singh except that he had died by hanging. In her complaint Ex.P11, Josna (PW9) has averred that the accused had given only one slap to her deceased husband and there is alleged to be no coercion to deceased Balbir Singh at the instance of accused to confess his guilt before any public authority. There is no overt act attributed to the accused which might have abetted Balbir Singh to commit suicide. The provisions of Section 306 of the IPC are attracted when a person abets commission of a suicide by doing an overt act or some such act which instigates the victim to commit suicide. The act so performed should also be immediate of suicide. In the present case, as seen above, there is not even a whisper about instigation of Balbir Singh about suicide. The harassment of Balbir Singh at the hands of the accused is not sustainable as there is no cogent or convincing evidence that he harassed or tortured deceased Balbir Singh for demand of stolen money to such an extent that he may be led to commit suicide. The fact remains that ingredients of abetment as defined in Section 107 of the IPC have to be satisfied for convicting a person under Section 306 of the IPC in the present case, bare ingredients of Section 107 of the IPC are not established and, therefore, there can be no conviction. In Sohan Raj Sharma Versus State of Haryana, [2008(2) Law Herald (P&H) 1294 (SC)] : reported as 2008 (3) Criminal Court Cases Page 190, it was laid down by the Hon’ble Supreme Court that in a charge under Section 306 of the IPC, there must be proof of direct or indirect act of abetment to the commission of suicide and the mere fact that the husband treated the deceased wife with cruelty is not enough. It was further laid down in the said authority that before a person can be said to be abetting the commission of offence under Section 306 of the IPC, it must be proved that he played active role in instigating or aiding the commission of suicide. In the present case, the accused was supporting the deceased and his family and even if, it is presumed that the accused had strictly asked the deceased about the stolen money, then also, ingredients of abatement to suicide are not satisfied. To bring home guilt to an accused under Section 306 of the IPC, the cruelty should be of such a nature as is likely to drive the person to commit suicide. In the present case, as mentioned herein before, there are general and vague allegations of beating, which have gone totally unsubstantiated and therefore, such an evidence could not be relied upon to hold that the accused meted out such a cruel treatment of Balbir Singh so as to drive him to commit suicide. There is no evidence whatsoever to the effect that the accused in any way, instigated deceased Balbir Singh to commit suicide or that he was responsible for the suicide. In Sanju alias Sanjay Singh Sengar Versus State of Madhya Pradesh reported as 2002 Criminal Law Journal page 2796, it was laid down by the Hon’ble Supreme Court that where the accused had told the deceased to go and die, by itself, would not constitute ingredients of instigation enshrined in Section 107 IPC and presence of mens rea is necessary concomitant of instigation. The learned Public Prosecutor contended that there is testimony of Josna, wife of deceased Balbir Singh, to the effect that her husband was tortured in the night and on the same night, he committed suicide by hanging and, thus, there can be no other reason of the suicide by Balbir Singh and the only reason was that the accused meted out such a cruelty to Balbir Singh that he was led to commit suicide. He further contended that word “instigate” used in Section 107 of the IPC, cannot be restricted to the use of actual word and it has to be given wider meaning commensurate with common experience of life. Hence, he argued that guilt of the accused is proved beyond reasonable doubt and accordingly, he may be held guilty and convicted. He further contended that word “instigate” used in Section 107 of the IPC, cannot be restricted to the use of actual word and it has to be given wider meaning commensurate with common experience of life. Hence, he argued that guilt of the accused is proved beyond reasonable doubt and accordingly, he may be held guilty and convicted. On the other hand, the learned defence counsel resisted the said contentions. After giving my thoughtful consideration to the contentions raised on behalf of the prosecution, I do not find any merit in the same. In the present case, there is sweeping and casual type of statement of complainant Josna which is not corroborated by medical or other evidence. The circumstances of the case did not indicate any harassment to deceased Balbir Singh at the hand of the accused and rather, according to the own prosecution case, deceased Balbir Singh was not handed over to the police with a formal complaint of theft. According to the own evidence of the complainant Josna, there were other persons in the house and under the circumstances, it was not possible for the accused to harass the deceased to such an extent that he may commit suicide. Therefore, since bare ingredients of Section 107 of the IPC have not been proved, no conviction of the accused can be based for the offence punishable under Section 306 of the IPC” 7. Learned counsel for the applicant submitted that there was ample material to connect the respondent-accused with the crime and learned trial court without properly appreciating the evidence, acquitted the respondent-accused, therefore, the impugned judgment was liable to be set aside. He further submitted that the respondent-accused levelled false allegation of committing the theft and, thereafter, gave beatings to Balbir Singh, (since deceased) which drived him to commit suicide. 8. I have heard learned counsel for the applicant and gone through the material available on record. 9. The prosecution has miserably failed to substantiate its allegations that Balbir Singh, since deceased, was summoned to the police station at the instance of the respondent-accused Umar Singh. Even the complaint, if any, filed by Umar Singh has not been brought on record. The inquest proceedings conducted by the police would reveal that there was no injury on the body of the deceased. Even the complaint, if any, filed by Umar Singh has not been brought on record. The inquest proceedings conducted by the police would reveal that there was no injury on the body of the deceased. Smt. Josna improved her version during the course of trial but failed to substantiate that respondent-accused Umar Singh instigated Balbir Singh to commit suicide. The prosecution could not lead any evidence much less cogent which may attract the mischief of Section 306, IPC, against the respondent-accused. 10. Their Lordships of the Supreme Court in ‘Allarakha K.Mansuri v. State of Gujarat, 2002(1) RCR (Criminal) 748’, State of ‘Goa v. Sanjay Thakran, [2007(2) Law Herald (SC) 1409] : (2007) 3 SCC 755 ’, and ‘Chandrappa v. State of Karnataka, [2008(4) Law Herald (SC) 2941] : (2007) 4 SCC 415 ’, held that where, in a case, two views are possible, the one which favours the accused, has to be adopted by the Court. 11. A Division Bench of this Court in ‘State of Punjab v. Hansa Singh, 2001(1) RCR (Criminal) 775’, while dealing with an appeal against acquittal, has opined as under:- “We are of the opinion that the matter would have to be examined in the light of the observations of the Hon’ble Supreme Court in Ashok Kumar v. State of Rajasthan, 1991(1) SCC 166 , which are that interference in an appeal against acquittal would be called for only if the judgment under appeal was perverse or based on a mis-reading of the evidence and merely because the appellate Court was inclined to take a different view, could not be a reason calling for interference.” 12. In Mrinal Das & others v. The State of Tripura, [2011(6) Law Herald (SC) 4149] : (2011) 9 SCC 479 , decided on September 5, 2011, the Supreme Court, after looking into many earlier judgments, has laid down parameters, in which interference can be made in a judgment of acquittal, by observing as under:- “An order of acquittal is to be interfered with only when there are “compelling and substantial reasons”, for doing so. If the order is “clearly unreasonable”, it is a compelling reason for interference. If the order is “clearly unreasonable”, it is a compelling reason for interference. When the trial Court has ignored the evidence or misread the material evidence or has ignored material documents like dying declaration/report of ballistic experts etc., the appellate court is competent to reverse the decision of the trial Court depending on the materials placed.” 13. Similarly, in the case of ‘State of Rajasthan v. Shera Ram alias Vishnu Dutta, [2012(1) Law Herald (SC) 751] : (2012) 1 SCC 602 ’, the Hon’ble Supreme Court has observed as under:- “7. A judgment of acquittal has the obvious consequence of granting freedom to the accused. This Court has taken a consistent view that unless the judgment in appeal is contrary to evidence, palpably erroneous or a view which could not have been taken by the court of competent jurisdiction keeping in view the settled canons of criminal jurisprudence, this Court shall be reluctant to interfere with such judgment of acquittal. 8. The penal laws in India are primarily based upon certain fundamental procedural values, which are right to fair trial and presumption of innocence. A person is presumed to be innocent till proven guilty and once held to be not guilty of a criminal charge, he enjoys the benefit of such presumption which could be interfered with only for valid and proper reasons. An appeal against acquittal has always been differentiated from a normal appeal against conviction. Wherever there is perversity of facts and/or law appearing in the judgment, the appellate court would be within its jurisdiction to interfere with the judgment of acquittal, but otherwise such interference is not called for.” 14. Thereafter, in the above case a large number of judgments were discussed and then it was opined as under:- “10. There is a very thin but a fine distinction between an appeal against conviction on the one hand and acquittal on the other. Thereafter, in the above case a large number of judgments were discussed and then it was opined as under:- “10. There is a very thin but a fine distinction between an appeal against conviction on the one hand and acquittal on the other. The preponderance of judicial opinion of this Court is that there is no substantial difference between an appeal against conviction and an appeal against acquittal except that while dealing with an appeal against acquittal the Court keeps in view the position that the presumption of innocence in favour of the accused has been fortified by his acquittal and if the view adopted by the High Court is a reasonable one and the conclusion reached by it had its grounds well set out on the materials on record, the acquittal may not be interfered with. Thus, this fine distinction has to be kept in mind by the Court while exercising its appellate jurisdiction. The golden rule is that the Court is obliged and it will not abjure its duty to prevent miscarriage of justice, where interference is imperative and the ends of justice so require and it is essential to appease the judicial conscience.” 15. Learned counsel for the applicant has failed to show any illegality, impropriety or error of facts and law in the judgment of learned trial court on the basis of which, the interference is required by this court. The learned trial court has recorded very valid and sound reasons in support of judgment of acquittal. 16. It is also apposite to mention here that the present case came up for hearing on 31.01.2012 and at the request of learned counsel for the applicant, it was adjourned to 14.05.2012. On the adjourned date, none appeared for the applicant, therefore, the case was adjourned to 08.08.2012. On the said date, learned counsel for the applicant sought for adjournment to place on record the copies of the statement recorded by learned trial court, therefore, the case was adjourned to 11.10.2012. On the adjourned date, learned counsel prayed for yet another adjournment. In the interest of justice, adjourned to 10.01.2013 subject to payment of costs of Rs.2500/- to be deposited with Haryana Legal Services Authority, Chandigarh. On the adjourned date, learned counsel for the applicant, prayed for yet another adjournment to comply with the order dated 11.10.2012, therefore, the case was adjourned to 16.01.2013. In the interest of justice, adjourned to 10.01.2013 subject to payment of costs of Rs.2500/- to be deposited with Haryana Legal Services Authority, Chandigarh. On the adjourned date, learned counsel for the applicant, prayed for yet another adjournment to comply with the order dated 11.10.2012, therefore, the case was adjourned to 16.01.2013. Even on the said adjourned date, yet another adjournment was sought for complying with the order dated 11.10.2012, therefore, the case was adjourned to 06.02.2013 but still the costs were not deposited. The conduct of the applicant is highly condemnable. 17. As it may be, the matter has been thoroughly scanned and it is found that no case for grant of leave to appeal is made out, therefore, the special leave to appeal is declined. 18. The Registry shall initiate proceedings to recover the amount of costs from the applicant in accordance with law.