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Himachal Pradesh High Court · body

2016 DIGILAW 922 (HP)

State of H. P. v. Jaswinder Rai

2016-05-25

AJAY MOHAN GOEL, DHARAM CHAND CHAUDHARY

body2016
JUDGMENT : Ajay Mohan Goel, J. This appeal has been filed against judgment dated 22.5.2012 passed by Addl. Sessions Judge (Fast Track Court) Una, in Sessions Case No. 25/VII/2011, vide which the learned Trial Court has acquitted the accused for commission of offence punishable under Section 306 read with Section 34 of the Indian Penal Code. (in short ‘IPC’). 2. The case of the prosecution was that on 2.6.2011 ASI Bir Singh alongwith HC Vikram Singh were present at village Dangoli in the house of Sukhdev Rai (hereinafter to be referred as ‘deceased’) to verify the circumstances of suicide note allegedly made by deceased, when complainant Reeta Devi wife of the deceased made a statement Ext.PW1/D under Section 154 Cr.P.C., stating therein that she was a resident of VPO Dangoli and was a housewife, who was married to deceased in the year 2007. She further stated that her marriage with deceased was a Court marriage and they had a son, named, Manat aged about 2 ¾ years old. Her husband, deceased, was working in K.C.C. Bank, Panjawar Branch and had raised a loan of Rs. 3.50 lacs, out of which some amount was spent in construction of a house and some was spent on the marriage of accused-Jaswinder Rai by the deceased. As and when deceased discussed about money, the accused used to quarrel with him and in this regard accused had preferred an application in the Police Station, Una and on that application the Panchayat members had got the matter compromised. As per the compromise, house was given to accused-Jaswinder Rai due to which deceased was frustrated from the behaviour of the accused and he ultimately committed suicide. 3. On the basis of the said statement, FIR No. 127 of 2011 was registered. After the registration of the said FIR, investigation was carried out. The investigating officer recorded the statements of Nirmala Devi and Ajay Kumar under Section 161 Cr.P.C. The investigating officer also took into possession copy of compromise produced by accused Dhanna Singh, vide Ext. PW4/A. 4. Further, as per prosecution, initially on 31.5.2011 at about 7:30 p.m. a telephonic message was received from Regional Hospital, Una that one person had been admitted in the hospital with the history of poisoning. HC Vikram SinghPW11 went to RH, Una and moved application, Ext. PW4/A. 4. Further, as per prosecution, initially on 31.5.2011 at about 7:30 p.m. a telephonic message was received from Regional Hospital, Una that one person had been admitted in the hospital with the history of poisoning. HC Vikram SinghPW11 went to RH, Una and moved application, Ext. PW9/B for MLC as well as to know the condition of the patient, as to whether the patient is fit to make statement or not. The doctor declared the patient unconscious and unfit to make statement and declared him dead at about 8:40 p.m. On 1.6.2011 HC Vikram Singh-PW11 prepared inquest report and moved an application for conducting the post-mortem. After the post mortem, he collected the report, i.e. Ext. PW9/D. On 6.6.2011, viscera of the deceased sealed with seal of Una Mortuary along with docket were sent to RFSL, Dharamshala through PW-12, who had deposited the same there on that very date. The admitted handwriting and the writing on the suicide note were compared by PW-13, vide Ext.PW13/A. As per report Ext. PW9/E, deceased died due to ‘Organochlro Insecticide’. 5. After the completion of investigation, challan was presented in the Court of learned CJM, Una and the case was committed for trial to the Court of learned Sessions Judge, Una which assigned the case for disposal to the Court of learned Addl. Sessions Judge, (FTC), Una. The accused were charged under Section 306 read with Section 34 IPC, to which they pleaded not guilty and claimed to be tried. 6. In order to prove its case, prosecution in all has examined 14 witnesses. 7. PW1-Reeta Rani stated that she was married to late Sh. Sukhdev Rai-deceased on 5.2.2007 and her husband-deceased was posted as protection clerk in KCC Bank at Panjawar Branch. Her husband had taken loan of Rs.3.5 lacs from his bank and some amount was spent by him on construction of his house and some amount in the marriage of his brother Jaswinder Rai. Her father-in-law, Sh. Dhanna Singh, had assured her husband that they will jointly repay the loan amount to the bank. When her husband requested his father-Dhanna Singh, his brother-Jaswinder Rai, sister-in-law (JETHANI) Susheel Kumari, mother-in-law of accused Jaswinder Rai in this regard, they started quarreling with her husband and refused to contribute towards the repayment of the loan. Her father-in-law, Sh. Dhanna Singh, had assured her husband that they will jointly repay the loan amount to the bank. When her husband requested his father-Dhanna Singh, his brother-Jaswinder Rai, sister-in-law (JETHANI) Susheel Kumari, mother-in-law of accused Jaswinder Rai in this regard, they started quarreling with her husband and refused to contribute towards the repayment of the loan. She further deposed that on 22.5.2011 accused persons, namely, Dhanna Singh, Susheela Kumari, Jaswinder Rai had quarrelled with her husband and police called her husband to Police Station on 23.5.2011. She had also accompanied her husband to the Police Station, where all accused persons were present along with Panchayat members. Compromise Ext.PW1/A was entered in the Police Station and in that compromise her husband was not given any property. The house constructed by her husband was given to accused-Jaswinder Rai along with ancestral house. She and her husband used to reside in a rented house at village Panjawar for the last three years. She has deposed that they were residing separately as their family members used to quarrel with them. Her husband remained under stress due to non-cooperation of the accused regarding payment of loan as they refused to contribute towards the repayment of the same as was assured by them. On 31.5.2011, her husband returned from his duty at about 5:15 p.m. and after some time he brought cold drinks and thereafter went to toilet. When he came out from the bathroom/toilet, he started vomiting. He again went to the bathroom wherein he fell down. She called neighbours in order to lift him and at that time he was semi-conscious and was not able to speak. An ambulance was called from Una and her husband was taken to District Hospital, Una where he was declared dead by the doctor. On 1.6.2011, police took into possession suicide note from the Almirah which was in the handwriting of her husband. The accused persons did not allow any villager or relatives to console the death of her husband. 8. PW2-Santosh Goel has deposed that police had taken into possession the leave application of deceased, Ext.PW2/B, which was in the hand of deceased-Sukhdev Rai. 9. PW3-Deepak Kumar is witness qua taking into possession of leave application by the police. 10. PW4-Gurmail Singh has deposed that accused had produced Photostat copy of compromise, Ext.PW1/A. 11. PW5-Nirmla Devi is the sister of deceased-Sukhdev Rai. 9. PW3-Deepak Kumar is witness qua taking into possession of leave application by the police. 10. PW4-Gurmail Singh has deposed that accused had produced Photostat copy of compromise, Ext.PW1/A. 11. PW5-Nirmla Devi is the sister of deceased-Sukhdev Rai. She has deposed that they were seven brothers and sisters and she had four brothers. Deceased-Sukhdev Rai was the only serving member of the family who was working in KCC Bank, Panjawar Branch. During the marriage of her brother-Jaswinder Rai, her father and other family members had asked deceased to take loan as they required money for the marriage of accused-Jaswinder Rai. She has further deposed that whole expense of the marriage was incurred by deceased and accused Dhanna and Jaswinder Rai had assured that loan amount shall be paid jointly. She has further deposed that her brother-Sukhdev Rai had built a new house by spending about Rs. 2.5 lacs. This house was constructed by deceased-Sukhdev. She has also deposed that marriage of accused-Jaswinder was solemnized from her house at Delhi. She further deposed that the deceased used to say that whenever he asked accused Dhanna and Jaswinder to help him in repaying the loan they used to start quarreling with him. On 22.5.2011, her deceased brother came to his house and asked the accused to repay the amount but accused quarreled with him and also moved false application against him in the Police Station on the said date. On 23.5.2011, deceased was compelled to enter into compromise in the Police Station and in the said compromise her deceased brother got nothing as old house was given to accused Jaswinder and new house was locked by the accused persons and due to the said tension deceased had told her that he had left everything to the accused and he shall not ask for anything from them. She further deposed that when her father Dhanna Singh was ill her brother had spent around Rs. 50,000/- on his treatment. She stated that compromise Ext.PW1/A bears her signatures. She also stated that when deceased went to the Police Station accused Kamlesh was also present in the Police Station and she had a quarrel with the deceased. 12. She further deposed that when her father Dhanna Singh was ill her brother had spent around Rs. 50,000/- on his treatment. She stated that compromise Ext.PW1/A bears her signatures. She also stated that when deceased went to the Police Station accused Kamlesh was also present in the Police Station and she had a quarrel with the deceased. 12. PW6-Kunti Devi, mother-in-law of the deceased deposed that whenever her son-in-law used to visit her house, he used to say that he had taken loan from the bank on the assurance of accused persons to repay the same but accused persons did not honour their undertaking and refused to pay the loan jointly. Accused persons used to quarrel with him and due to this reason, when deceased demanded money from the accused persons they lodged report against him in the Police Station. According to her, as a result of said complaint having been filed by the accused, deceased was humiliated and committed suicide on 31.5.2011. She also deposed that the deceased had told her that he had spent loan amount on the marriage of accused Jaswinder Rai. As per her, all accused persons were torturing the deceased. 13. PW7-HC Vipin Kumar has stated that he remained posted as MHC, P.S. Haroli and has deposed with regard to deposit of the case property with him. He has also stated that as long as the case property remained with him it remained intact. 14. PW8-constable Mohan Lal has deposed that he had handed over compromise Ext. PW1/A to ASI Bir Singh who took the same into his possession vide Ext.PW8/A. 15. PW9-Daljeet Singh has stated that he was posted as Medical Officer in Zonal Hospital, Una and on 31.5.2011 at about 8:35 p.m. patient Sukdev Rai was brought to the hospital with the alleged history of ingestion of poison. He further stated that patient was declared dead at 8:40 p.m. Police was informed that it was a case of suspected poisoning. He has also deposed that he issued MLC, Ext.PW9/A. 16. PW10-SI Shakti Singh Pathania was posted as SHO, in Police Station, Haroli and he has deposed that he received statement of Smt. Reeta Devi, Ext.PW1/D, under Section 154 Cr.P.C. and on the basis of the same he registered the FIR. 17. He has also deposed that he issued MLC, Ext.PW9/A. 16. PW10-SI Shakti Singh Pathania was posted as SHO, in Police Station, Haroli and he has deposed that he received statement of Smt. Reeta Devi, Ext.PW1/D, under Section 154 Cr.P.C. and on the basis of the same he registered the FIR. 17. PW11-HC Vikram Singh has stated that on 31.5.2011 at about 7:30 p.m. a telephone call was received from Regional Hospital, Una that one person was admitted in Una Hospital which was a case of poisoning. He moved an application for MLC as well as to know the condition of patient as to whether he is fit to make statement or not. The doctor declared the patient unconscious and unfit to make statement and declared the patient dead at 8:40 p.m. The dead body was handed over to him for getting the post mortem examination done. He moved an application for conducting the post mortem of the dead body. According to him, post mortem report, Ext.PW9/D, was given to him and thereafter dead body was given for cremation to the relatives of the deceased. He has also deposed that on 1.6.2011 he visited village Panjawar where the deceased was living on rent and searched the residential room from where suicide note, Ext.PW1/B, along with file was recovered and taken into possession in the presence of wife of the deceased and brother Chans Rai and relative Bakshi Ram. 18. PW12-HHC Jaswant Singh has deposed that on 6.6.2011 MHC Vipin Kumar handed viscera of deceased-Sukhdev Rai to be handed over at RFSL, Dharamshala, which he had deposited on the same day, and as long as the case property remained with him it remained intact. PW13-Mam Raj Sharma has deposed that exhibit mentioned under the heading of questioned file/report number 755 RFS documents (2011) have been carefully and thoroughly examined with scientific aids and report obtained after such examination given in para-2 of result part of report i.e. blue and stamped and marked as A-1 to A-3, vide Ext.PW2/B in read enclosed writing, vide Ext.PW1/B and stamped and marked as Q-1 and Q-2 in the laboratory which have been written by one and the same person. 19. 19. PW14-ASI Bir Singh has stated that on 1.6.2011, he and HC Vikram Singh had recorded the statement of complainant under Section 154 Cr.P.C. He also recorded the statement of Nirmla Devi, Ajay Kumar and re-examined Reeta Devi and recorded her statement under Section 161 Cr.P.C. He also took into possession compromise deed and the application which was made in this regard. 20. The learned Trial Court on the basis of the material produced on record before it, by the prosecution, concluded that conviction cannot be recorded in the case for the reason that there is no cogent and convincing evidence produced by the prosecution that accused persons, in furtherance of their common intention, had abetted the commission of suicide by the deceased. Accordingly, the learned Trial Court acquitted all the accused. 21. Feeling aggrieved by the said judgment passed by the learned Trial Court, the State has preferred the present appeal. 22. We have heard learned counsel for the parties and have also gone thorough the records of the case. 23. Mr. Chauhan, learned Addl. Advocate General has argued that the judgment passed by the learned Trial Court, whereby it has acquitted the accused of the offences charged against them is perverse and not sustainable in the eyes of law. As per him, in the present case, the prosecution was able to prove its case beyond any reasonable doubt. The prosecution witnesses have fully corroborated the case of the prosecution and there was no contradiction in their testimonies. He further argued that all the ingredients of Section 306 stood proved by the prosecution before the learned Trial Court. According to him, the deceased had committed suicide as a result of harassment which was caused to him by accused persons, who had refused to help him in the discharge of loan which he had raised, some part of which was also spent on the marriage of accused-Jaswinder Rai. He has further argued that it stood established from the compromise deed as well as from the suicide note that accused were quarreling with deceased and they were harassing him and it is on account of these factors, that the deceased ultimately committed suicide. As per him, the learned Trial Court had failed to appreciate these aspects of the matter. He has further argued that it stood established from the compromise deed as well as from the suicide note that accused were quarreling with deceased and they were harassing him and it is on account of these factors, that the deceased ultimately committed suicide. As per him, the learned Trial Court had failed to appreciate these aspects of the matter. The reasoning given by the learned Trial Court for the acquittal of the accused persons was based on conjectures and surmises rather than the facts of the case. Therefore, according to him, the judgment so passed by the learned Trial Court was not sustainable in the eyes of law as the conclusions arrived therein were not borne out from the record. He prayed that the said judgment be set aside and accused be convicted for commission of offences charged against them. 24. On the other hand Mr. Ashwani Kaundal, learned counsel for the respondents has argued that there is neither any infirmity nor any perversity in the judgment passed by the learned Trial Court. According to him, the prosecution had failed to prove its case against the accused beyond reasonable doubt. The testimony of the prosecution witnesses was neither trustworthy nor did it inspire confidence. He has argued that the learned Trial Court had rightly come to the conclusion that the material produce on record by the prosecution could not establish beyond reasonable doubt that the accused had abetted the suicide by the deceased. Accordingly, he prayed that there was no merit in the appeal filed by the State and the appeal was liable to be dismissed. 25. It has been held by the Hon’ble Supreme Court in Sangara Bonia Sreen Vs. State of Andhra Pradesh, 1997 (5) Supreme Court Cases, 348 that the basic ingredients of offence under Section 306 are (a) suicidal death and (b) abetment thereof. In our considered view, in order to attract the ingredients of abetment the intention of the accused to aid or instigate or abet the deceased to commit suicide is necessary. 26. It is a unique legal phenomenon in the Indian Penal Code that the only act, the attempt of which alone will become an offence, is suicide. The person who attempts to commit suicide is guilty of the offence under Section 309 IPC, whereas the person who committed suicide cannot be reached at all. 26. It is a unique legal phenomenon in the Indian Penal Code that the only act, the attempt of which alone will become an offence, is suicide. The person who attempts to commit suicide is guilty of the offence under Section 309 IPC, whereas the person who committed suicide cannot be reached at all. Section 306 renders the person who abets the commission of suicide punishable for which the condition precedent is that, suicide should necessarily have been committed. Thus, the crux of the offence under Section 306 itself is abetment. In other words, if there is no abetment there is no question, the offence under Section 306 comes into play. 27. Hereinafter, we will apply these principles to the facts of the present case. A close scrutiny of the statements of the prosecution witnesses will demonstrate that none of them have mentioned any explicit act on the part of the accused which can be termed to be an act of abetment on their behalf which led deceased Sukhdev Rai to commit suicide. On the basis of the statements of the prosecution witnesses who were also interested witnesses, it cannot be said that the prosecution was successful in demonstrating and proving that the accused had committed any act which could be termed to be an act of abetment towards the commission of suicide by deceased Sukhdev Rai. 28. In order to substantiate the charge under Section 306 I.P.C., it has to be established that the death by commission of suicide was desired object of the abettors and with that in view they must have instigated, goaded, urged or encouraged the victim in commission of suicide. The instigation may be by provoking or inciting the person to commit suicide and this instigation may be gathered by positives acts done by the abettors or by omission in the doing of a thing. Thus, the acts or omission committed by the abettors immediately before the commission of suicide are vital. In the present case, we are afraid that the prosecution was not able to substantiate any of the above ingredients. The prosecution could not prove any act of provocation or incitement or omission or commission on the part of the accused, vide which he had instigated the deceased to commit suicide. 29. In the present case, we are afraid that the prosecution was not able to substantiate any of the above ingredients. The prosecution could not prove any act of provocation or incitement or omission or commission on the part of the accused, vide which he had instigated the deceased to commit suicide. 29. The prosecution has not been able to establish any intention of the accused to aid or instigate or abet the deceased to commit suicide. Therefore, it cannot be said that the judgment passed by the learned Trial Court whereby the accused has been acquitted is either perverse or the acquittal of the accused by the learned Trial Court has amounted to travesty of justice. 30. Much stress has been laid by the prosecution on the compromise entered into between deceased and the accused on 23.5.2011 which is Ext.PW1/A. This compromise has been entered into between accused Jaswinder Rai and Susheela Kumari on one side and deceased-Sukhdev Rai, Pooja, Madhu, Nirmala Devi, Kesri Devi and Reetta Kumari on the other side. The contents of this ‘RAJINAMA’ are to the effect that accused-Jaswinder Rai will remain separately with his family in the old house and the present room will remain with him and the second party will not go to his house nor will they abuse each other. The first party agreed to this and stated that whatever misunderstanding are there, they stand removed and now they were not having any danger to their life or property and accordingly now the first party was not interested in any action to be taken against the other side. It was also agreed that in case either of the party violated the condition of the Rajinama, then action shall be initiated against them and in case either of the party intends to discuss with each other issues pertaining to the house, then the same shall be put before the Panchayat. Incidentally and strangely in this Rajinama there is no reference of any loan etc. having been taken by deceased-Sukhdev Rai or his having spent any amount from the same on the marriage of accused Jaswinder. Further, there is no reference in this agreement to the effect that accused had acknowledged to repay part of the loan, which had been raised by deceased-Sukhdev Ram. Ext.PW1/B is the suicide note in which it is stated that the elder brother of deceased owed him Rs. Further, there is no reference in this agreement to the effect that accused had acknowledged to repay part of the loan, which had been raised by deceased-Sukhdev Ram. Ext.PW1/B is the suicide note in which it is stated that the elder brother of deceased owed him Rs. 2.00 lacs and whenever he used to talk about the repayment, said brother used to abuse him and also assault him. It was further mentioned in the suicide note that his elder brother was wrong, he had filed a complaint against him and his family members before Una police, in which accused Jaswinder his brother deceased-Sukhdev and his mother-in-law Kamlesh were also involved. It is also mentioned in the suicide note that his father is also involved. It is further mentioned in the suicide note that his father has given entire house to accused Jaswinder and the other house which had been constructed by deceased and his bother on that too accused Jaswinder used to impose his right. Thus these were the reasons mentioned in the suicide note which compelled the deceased to committee suicide. 31. In our considered view, no cogent and reliable evidence has been brought on record by the prosecution to demonstrate that the accused had in fact undertaken to repay the loan raised by deceased Sukhdev Rai from the bank. Even the compromise, Ext.PW1/A which was admittedly entered into between the parties before the police does not contain even a single word with regard to any alleged undertaking given by the accused persons to late Sh. Sukhdev Rai to contribute for repayment of the loan raised by him. All that is borne out from the said compromise is that there was some dispute between accused-Jaswinder Rai on one hand and the other parties who are signatory to the compromise to which include deceased and his wife. Further, there is no mention in this document about any contribution having been made by the deceased from the loan amount raised by him in the marriage of accused Jaswinder Rai. It is relevant to refer to the statement of PW11 HC Vikram Singh, who in his cross-examination deposed that at the time of preparation of inquest report Reeta Devi had not raised any allegation or suspicion against any one with regard to the death of her husband. It is relevant to refer to the statement of PW11 HC Vikram Singh, who in his cross-examination deposed that at the time of preparation of inquest report Reeta Devi had not raised any allegation or suspicion against any one with regard to the death of her husband. Not only this, even the testimony of Reeta Devi does not inspire confidence because perusal of her statement made under Section 154 Cr.P.C. and thereafter statement recorded by her during re-examination as well as her deposition in the Court demonstrate that there are contradictions in the statement and Reeta Devi and she has improved her statements with the passage of time. In our considered view, all the circumstances which had been brought on record by the prosecution do not prove beyond reasonable doubt that accused have committed any offence under Section 306 read with Section 34 IPC i.e., they have abetted the suicide by the deceased-Sukhdev Singh. 32. Thus, we conclude by holding that the prosecution has failed to establish beyond reasonable doubt that the accused were guilty of the offences alleged against them. We have gone through the judgment passed by the learned Trial Court at length. The learned Trial Court after due deliberation and due application of mind has come to the conclusion that the prosecution could not bring home the guilt against the accused persons beyond reasonable doubt. We find no reason to disagree with the said conclusion arrived at by the learned Trial Court. According to us also, the accused persons are entitled to the benefit of doubt as the prosecution has failed to prove beyond reasonable doubt the guilt of the accused. Therefore, we uphold the findings recorded by the learned Trial Court and the appeal is dismissed being without any merit. Bail bonds, if any, furnished by the accused are discharged.