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2013 DIGILAW 451 (HP)

State of Himachal Pradesh v. Sudesh Kumar

2013-05-21

RAJIV SHARMA, SURINDER SINGH

body2013
JUDGMENT Surinder Singh, J (Oral). Respondents were charge-sheeted, tried and acquitted of the offence punishable under Section 306 of the Indian Penal Code read with Section 34 of the Indian Penal Code, for allegedly abetting the suicide committed by Smt. Dharam Dei, wife of respondent - accused Sudesh Kumar. The State felt aggrieved by the impugned judgment of acquittal, as such, filed the instant appeal. 2. The perusal of the record shows that the learned trial Court acquitted the respondents on the ground that there is no evidence of alleged abetment. Further, the evidence produced by the prosecution was jettisoned on the ground that there are only bald and unsubstantiated statements of the close relatives of the deceased.The FIR was lodged after about 13 days after the cremation of the deceased and also that no presumption could have been raised under Section 113-A of the Evidence Act in the absence of the reliable and cogent evidence of the alleged cruelty. Also, the alleged cruelty of sporadic incident was not otherwise proximate to the time of death of the deceased. 3.Shri Ramesh Thakur, learned Assistant Advocate General vehemently argued that the learned trial Court did not appreciate the evidence of the prosecution in the right perspective, whereas the statements of the complainant as well as the sisters of the deceased have proved the case against the accused persons for the offence charged. 4.On the other hand, Shri Beli Ram Sharma, learned Counsel for the respondents/accused persons supported the impugned judgment of acquittal and referred to the statement of PW-13 Smt. Pooja Thakur, who was considered to be an important witness by the prosecution, but did not support its case. 5.We have considered the respective contentions of the learned Counsel for the parties and carefully gone through the record. 6.PW-1 Rajesh Kumar is the younger brother of the deceased. He stated that his deceased sister was married to accused Sudesh Kumar in the year 1996. After her marriage, she was residing at Totu with accused Sudesh Kumar. After the death of the father of accused Sudesh Kumar, he was posted in CMO Office, Solan on compassionate ground. During this marriage, deceased had given birth to two children. The accused had been residing at Solan in a rented premises. According to him, accused Sudesh Kumar had not been visiting his family for days together. After the death of the father of accused Sudesh Kumar, he was posted in CMO Office, Solan on compassionate ground. During this marriage, deceased had given birth to two children. The accused had been residing at Solan in a rented premises. According to him, accused Sudesh Kumar had not been visiting his family for days together. When the deceased used to ask accused Sudesh Kumar the reason of not visiting her, he made lame excuses that he had lot of work in his office at Solan. He stated that once deceased made a surprise visit at the rented accommodation of the accused at Solan and found him with a lady sleeping on the same bed. The accused had given beatings to the deceased and disclosed this fact to him at Solan. Thereafter, he took her to Totu (Shimla). In the cross-examination, he stated that the said incident of a lady found in the company of accused was 3-4 months prior to her death. They could not know about the name of the lady and the place she belonged. Even, this fact was also not known to the deceased. 7. PW-2 Dhanni Devi, the sister of the deceased, also made the similar statement about the alleged incident of visiting the rented premises of the accused by the deceased at Solan. In the cross-examination, she stated that her deceased sister could not identify the lady. 8.PW-3 Shakuntla is the elder sister of the deceased. She stated that while going to Solan, her deceased sister had made a telephonic call to her from Solan informing her that she was going to Solan and in case her husband would not meet her, she would reside with the owner of the house, who treats her as his daughter. But in the morning, the deceased while weeping told her that on reaching Solan she found the door of the house of the accused open and accused Sudesh Kumar was lying with a woman on the bed, therefore, she thought of ending her life by throwing herself before a train, but keeping in view, that she had small children, she could not do anything. In the cross-examination, she stated that the deceased used to visit Solan frequently and, therefore, the owner of the house was known to her and used to treat her as a daughter. But, however, the identity of the lady was not known. In the cross-examination, she stated that the deceased used to visit Solan frequently and, therefore, the owner of the house was known to her and used to treat her as a daughter. But, however, the identity of the lady was not known. 9.PW-4 Sheela Devi also made the similar statement. In the cross-examination, she stated that the deceased told her about the above incident of a girl which took place four years after the marriage. Meaning thereby, the alleged incident had taken place about more than 3 1/2 years before her death. 10.PW-5 is Dr. Anjan Raina, who was posted at the relevant time in D.D.U Hospital, Shimla. On 27.10.2004, the deceased was brought to her by the accused at 10.45 p.m with the alleged history of ingestion of insecticide. She was unconscious and was not responding to stimuli. However, pungent smell was coming from her breath. Gastric lavage was done with normal saline. Aspirate was slightly green in colour containing food particles.Atropine injection and I.V. fluids oxygen were given and the deceased was referred to IGMC for further management. The Medico Legal Certificate is Ext. PB. However, the deceased could not survive and ultimately, died in IGMC Shimla because of consumption of insecticide. Her post mortem was conducted and viscera was sent for forensic examination. It contained ‘organophosphorus Dichlorovas’. 11.PW-14 Pooja, the owner of the premises occupied by accused Sudesh Kumar, did not support the prosecution case. 12. On the critical examination of the aforesaid evidence, we find certain significant facts of the case which weigh in favour of the accused persons. Firstly, there was no complaint prior to the alleged incident to the effect that the deceased had noticed a woman in the company of the accused which incident had taken place about 31/2 years prior to her commission of suicide. Secondly, PW-13 Pooja Thakur, the owner of the premises, did not support the case of the prosecution at all. Significantly, she stated that she had never seen any lady living with accused Sudesh Kumar. She also denied that a young lady (deceased) had also complained to her that the accused had spoiled her life. She was confronted with her earlier statement recorded under Section 161 of the Code of Criminal Procedure, to which she denied. Thirdly, PW-1 1 Nand Lal had hired accommodation for accused Sudesh Kumar in the premises of PW-13 Pooja Thakur. She also denied that a young lady (deceased) had also complained to her that the accused had spoiled her life. She was confronted with her earlier statement recorded under Section 161 of the Code of Criminal Procedure, to which she denied. Thirdly, PW-1 1 Nand Lal had hired accommodation for accused Sudesh Kumar in the premises of PW-13 Pooja Thakur. He did not say whether the accused was living with some stranger lady in those rented premises. Fourthly, the alleged incident is not proximate to the time of her death which compelled her to take such extreme step. Fifthly, there is no other evidence of reliable nature which proves cruelty. 13.For the offence charged, the prosecution is obliged to prove that there has been an abetment of the offence of suicide. The offence under Section 306 of the Indian Penal Act is abetting suicide. Section 107 of the aforesaid Act defines “abetment” (a) instigation to commit offence; (b) engaging to conspiracy to commit the offence; and (c) aiding the commission of an offence. 14.“Abetment”, thus necessarily means some active suggestion or support to the commission of the offence, but the word “instigate” literally means goad, urge, forward, provoke, incite or encourage to do “an act”. A person is stated to instigate to do an act when he actively suggests or stimulates him to act by any means, or language, direct or indirect, whether it takes the form of solicitation or of hints, insinuation or encouragement. It is also not necessary that instigation should be only in words and may not be conduct. 15.In the instant case, there are only the bald statements of the brother and sisters of the deceased that too much after her suicide; not even inspiring confidence. 16.In Durga Prasad and another versus State of Madhya Pradesh (2010)9 SCC 73 , the Apex Court happened to consider the statements of victims’ mother and brother qua cruelty and harassment prior to her death, but their bald statements were found insufficient in absence of any other evidence proving that she committed suicide on account of alleged cruelty/harassment, to which she was subjected just prior to her death, which, in fact, is the main ingredient of the offence charged. 17. 17. In the instant case also, the alleged story of accused Sudesh Kumar’s being in the company of a woman at his residence at Solan was an episode, which according to the prosecution witnesses, had taken place 3-4 months prior to her death, which otherwise also has not been proved beyond a shadow of doubt and cannot be said to be proximate to the time of death and there is no iota of evidence to show that the deceased was compelled to commit suicide. Thus, keeping in view the time gap in between the episode of alleged bigamy/adultery and the contradictions in this behalf, it can also not be said that such an act was immediate cause for commission of suicide of Dharam Dei, wife of accused Sudesh Kumar. 18.Further, there is also no cogent evidence worth the name against the respondent, mother-in-law of the deceased. 19.Therefore, as a sequel of the aforesaid discussion and legal proposition, we do not find any perversity in the judgment of acquittal recorded by the learned trial Court as the findings of acquittal are borne out from the record which require no interference. Hence, the appeal sans merit and is accordingly dismissed. 20. The respondents are hereby discharged of their bail bonds entered upon by them at any time of the proceedings. Send down the records.