CRA-S- 656-SB of 2002 1 In the High Court for the States of Punjab and Haryana at Chandigarh CRA-S- 656-SB of 2002 Date of decision: 20.2.2014 Jagir Singh ... ..Appellant Versus State of Punjab ..Respondent Coram: Hon'ble Mr. Justice Mahavir S. Chauhan Present: Mr. APS Mann, Advocate, for the appellant Mr. G.S.Sidhu, AAG,Punjab, for the respondent-State ******
1. Whether Reporters of local papers may be allowed to see the judgment? Yes
2. To be referred to the Reporter or not? Yes
3. Whether the judgment should be reported in the Digest? Yes ****** Mahavir S.Chauhan, J.(Oral) Having been convicted and sentenced to undergo rigorous imprisonment for 10 years and a fine of ` 5000/- and in default of payment of fine further rigorous imprisonment for 06 months under Section 306 of the Indian Penal Code, 1860 (for short,”IPC“) and rigorous imprisonment for 02 years and a fine of `5000/- and in default of payment of fine further rigorous imprisonment for 06 months under Section 498-A, IPC, by the learned Sessions Judge, Kapurthala, vide judgment/order dated 09.04.2002 passed in Sessions Case No. 50 of 11.09.2000, convict Kant Nirmal 2014.02.26 17:36 I am the author of this document high court chandigarh Jagir Singh has invoked, by way of the instant appeal, the provisions of sub-section (2) of Section 374 of the Criminal Procedure Code, 1973 (for short, “Cr.P.C“) to impugn correctness of the findings of conviction and consequent award of punishment to him and to seek his acquittal.
State is contesting the appeal.
Fact situation giving rise to the appeal at hand suggests that First Information Report (for short, “FIR”) No. 89 dated 23.06.2000 (Exhibit PW5/A) was recorded at Police Station, Sadar, Kapurthala, under Sections 304-B/34, IPC, on the statement, Exhibit PA, of PW Gurnam Singh, father of deceased, Sarabjit Kaur, arraigning the appellant and his mother, Nasib Kaur as accused, on the allegations that the deceased was married to the appellant about three and a half years before her death; of the wedlock, one female child was born; one year prior to the occurrence, deceased had told him and his wife that members of her matrimonial family were pressurizing her to ask for hand of daughter of complainant’s brother, Gian Singh for appellant’s younger brother, Rajinder Singh; refusal of Gian Singh, to accede to the proposal annoyed the appellant and members of his family and, as such, they started torturing the deceased and warned her that they would throw her out of the connubial habitat if the aforesaid relationship did not materialize; she was not served proper food even; on 18.06.2000 appellant and the deceased came to his (complainant’s) place where appellant told him that either he (the complainant) got Gian Singh’s daughter married to Kant Nirmal 2014.02.26 17:36 I am the author of this document high court chandigarh his younger brother or keep the deceased with him; however, the appellant was pacified and was made to return to her nuptial abode along with the deceased; in the morning of 23.6.2000 he received a telephone call from appellant Jagir Singh revealing that the deceased was seriously ill and was admitted in Civil Hospital, Kapurthala; he accompanied by his cousin went to said hospital and found that deceased was lying dead there; and that the deceased had died of taking some poisonous substance.
Matter was investigated into and on conclusion of investigation, a report in terms of sub-section (2) of Section 173, CrPC, was presented before the learned jurisdictional magistrate, who, in turn, committed the case to the Court of Session, the offence of Section 304B, IPC, being exclusively triable by that Court.
Learned Sessions Judge, after hearing the prosecutor and the defence and on perusal of the report and documents appended therewith, having found grounds to presume, commission of offences punishable under Sections 498A and 306, IPC, by the appellant and Nasib Kaur, to exist, charged them for those offences. The accused put up a plea of not guilty and a claim for trial.
To establish oral account of the happenings, prosecution examined deceased’s father Gurnam Singh as PW1, her mother Harjinder Kaur as PW3, the mediator (vichola) Avtar Singh as PW2; to bring on record medical evidence it examined Dr. Jatinder Kaur as PW6 and Dr. B.S.Multani as PW7; and to prove various stages and aspects of investigation, ASI Balkar Singh as PW8, HC Sharanjit Kant Nirmal 2014.02.26 17:36 I am the author of this document high court chandigarh Singh as PW4 and C-1 Varinder Singh as PW5 .
When examined under Section 313, CrPC, the accused denied as incorrect all the circumstances brought on record by the prosecution and came out with a plea that the deceased was suffering from various ailments; was firstly treated at Sacred Heart Hospital, Maqsudan but after her discharge from there, she again fell ill and was got admitted in Civil Hospital Kapurthala where she succumbed to high fever and other ailments but before that appellant had informed PW Gurnam Singh of her admission in the hospital.
To substantiate their plea, the accused examined Dr. Dev Raj as DW1, Dr. Harjit Singh as DW2 and Pritam Singh as DW3 in their defence.
On hearing the prosecutor and the defence and appraisal of evidence available on record, learned Sessions Judge came to the conclusion that the prosecution could not prove guilt of Nasib Kaur but was able to prove it, beyond reasonable doubt, as regards the appellant and, accordingly, vide judgment/order dated 09.04.2002, while acquitting Nasib Kaur, convicted and sentenced the appellant under Sections 498-A and 306, IPC, as herein before stated.
It is now argued on behalf of the appellant that the evidence available on record is far from being sufficient to support the findings of conviction recorded by the learned Sessions Judge against the appellant. According to the learned counsel representing the appellant, the allegations are ex facie cooked up and even if taken to have been proved, though arguendo, these donot constitute Kant Nirmal 2014.02.26 17:36 I am the author of this document high court chandigarh the offences punishable under Sections 306 and 498A, IPC, in so far as no specific instances of cruelty, muchless sufficient to establish a wilful conduct of such a nature as would have driven the deceased to commit suicide or to cause grave injury or danger to her life, limb or health (whether mental or physical) or her harassment with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security; or abetment within the meaning of Section 107, IPC, have been established, rather, to the contrary, the allegations are general and vague in nature.
Learned counsel for the appellant refers to the evidence of PW6, Dr. Jatinder Kaur and PW7, Dr. B.S. Multani to show that though in the bed head ticket, it was originally stated that deceased was brought to the hospital as a case of suspected poisoning but on chemical examination of the viscera, no poison was detected in the contents of stomach, small and large intestines, liver, spleen, kidney, sample of blood from heart and sample of preservative. This according to learned counsel for the appellant demolishes the very foundation of the story of the prosecution that the deceased died an unnatural death or committed suicide by ingestion of poison pursuant to abetment by the appellant.
On the contrary, the learned Assistant Advocate General, appearing on behalf of the respondent-State would argue that the evidence available on record is sufficient to establish guilt of the appellant punishable under Sections 498-A and 306, IPC, in so far as from the very inception of marriage of the deceased with the Kant Nirmal 2014.02.26 17:36 I am the author of this document high court chandigarh appellant, she was pressurized to arrange marriage of younger brother of the appellant with daughter of her uncle and was threatened of being thrown out of the matrimonial home if the relationship did not materialise. According to the learned State counsel, last such threat came on 18.06.2000, just a few days before the deceased resorted to the extreme step of ending her life and, as stated by PW7 Dr. B.S.Multani, she was brought to the hospital as a case of suspected poisoning.
“306. Abetment of suicide.– If any person commits suicide, whoever abets the commission of such suicide, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.”
“107. Abetment of a thing.– A person abets the doing of a thing, who-
First.- Instigates any person to do that thing; or Secondly.- Engages with one or more other person or persons in any conspiracy for the doing of that thing, if an act or illegal omission takes place in pursuance of that conspiracy, and in order to the doing of that thing; or Thirdly.- Intentionally aids, by any act or illegal omission, the doing of that thing.
Explanation 1 A person who, by wilful misrepresentation, or by wilful concealment of a material fact which he is bound to disclose, voluntarily causes or procures, or attempts to cause or procure, a thing to be done, is said to instigate the doing of that thing.
Illustration A, a public officer, is authorized by a warrant from a Court of Justice to apprehend Z, B, knowing that fact Kant Nirmal 2014.02.26 17:36 I am the author of this document high court chandigarh and also that C is not Z, wilfully represents to A that C is Z, and thereby intentionally causes A to apprehend C. Here B abets by instigation the apprehension of C. Explanation 2:-
Whoever, either prior to or at the time of the commission of an act, does anything in order to facilitate the commission of that act, and thereby facilitates the commission thereof, is said to aid the doing of that act.”
The word suicide in itself is nowhere defined in the Indian Penal Code, however its meaning and import is well known and requires no explanation. ‘Sui’ means `self’ and ‘cide’ means `killing’, thus, implying an act of self-killing. In short a person committing suicide must commit it by himself, irrespective of the means employed by him in achieving his object of killing himself.
In Ramesh Kumar v. State of Chhattisgarh, (2001) 9 SCC 618, a three-Judge bench of the Hon’ble Supreme Court had an occasion to deal with a case of a similar nature. In a dispute between the husband and wife, the appellant husband had uttered “you are free to do whatever you wish and go wherever you like”. Thereafter, the wife of the appellant therein, Ramesh Kumar, had committed suicide. The Hon’ble Supreme Court examined different shades of the meaning of “instigation” and observed that “Instigation” is to goad, urge, forward, provoke, incite or encourage to do “an act”. To satisfy the requirement of instigation though it is not necessary that actual words must be used to that effect, but what constitutes instigation must necessarily and specifically be suggestive of the consequence. A reasonable certainty to incite the consequence must be capable of being spelt out. The acts or omission or a continued Kant Nirmal 2014.02.26 17:36 I am the author of this document high court chandigarh course of conduct should be such as to create such circumstances that the deceased was left with no other option except to commit suicide in which case instigation may have been inferred. A word uttered in the fit of anger or emotion without intending the consequences to actually follow cannot be said to be instigation.
In State of West Bengal v. Orilal Jaiswal and Anr., (1994) 1 SCC 73, Hon’ble Supreme Court cautioned that the Court should be extremely careful in assessing the facts and circumstances of each case and the evidence adduced in the trial for the purpose of finding whether the cruelty meted out to the victim had in fact induced her to end the life by committing suicide. If it appears to the Court that a victim committing suicide was hypersensitive to ordinary petulance, discord and difference in domestic life quite common to the society to which the victim belonged and such petulance, discord and difference were not expected to induce a similarly circumstanced individual in a given society to commit suicide, the conscience of the Court should not be satisfied for basing a finding that the accused charged of abetting the offence of suicide should be found guilty.
Hon’ble Supreme Court in Chitresh Kumar Chopra v. State (Govt. of NCT of Delhi), 2009 (11) SCALE 24 dealt with the dictionary meaning of the word “instigation” and “goading” and opined that there should be intention to provoke, incite or encourage the doing of an act by the victim.
Abetment, thus, involves a mental process of instigating a person or intentionally aiding a person in doing of a thing. Without a Kant Nirmal 2014.02.26 17:36 I am the author of this document high court chandigarh positive act on the part of the accused to instigate or aid in committing suicide, conviction cannot be sustained.
The intention of the Legislature and the ratio of the cases decided by the Hon’ble Supreme Court is clear that in order to convict a person under Section 306, IPC there has to be a clear mens rea to commit the offence. It also requires an active act or direct act which led the deceased to commit sui cide seeing no option and this act must have been intended to push the deceased into such a position that he committed suicide.
In the case on hand, learned Sessions Judge, on the basis of the evidence available on record concluded that “it is a case of committing suicide by Sarabjit Kaur after three and a half years of the marriage with the accused Jagir Singh, i.e. within seven years from the date of her marriage” and raised a presumption in terms of Section 113-A of the Indian Evidence Act, 1872 (for short, “the Evidence Act“) to the effect that suicide by the deceased was abetted by the appellant. Section 113-A, Evidence Act runs thus:
113A. Presumption as to abetment of suicide by a married woman.- When the question is whether the commission of suicide by a woman had been abetted by her husband or any relative of her husband and it is shown that she had committed suicide within a period of seven years from the date of her marriage and that her husband or such relative of her husband had subjected her to cruelty, the court may presume, having Kant Nirmal 2014.02.26 17:36 I am the author of this document high court chandigarh regard to all the other circumstances of the case, that such suicide had been abetted by her husband or by such relative of her husband.
Explanation.– For the purposes of this section, “cruelty” shall have the same meaning as in section 498A of the Indian Penal Code (45 of 1860 ).
Ingredients of cruelty which are likely to drive a woman to commit suicide or to cause grave injury or danger to life, limb or health, whether mental or physical, of the woman are required to be established in order to bring home the application of Section 498-A, IPC, or to invoke the presumption under Section 113-A, Evidence Act. “Cruelty” has been defined in the Explanation for the purpose of Section 498-A. as , “(a) any wilful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman; or (b) harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand.” In addition, presumption under Section 113-A, Evidence Act arises as to dowry death when a woman committed suicide within a period of seven years from the date of marriage.”
Section 498-A, IPC, has two limbs. The first limb of Section 498-A, IPC, provides that whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty Kant Nirmal 2014.02.26 17:36 I am the author of this document high court chandigarh shall be punished. “Cruelty” has been defined in clause (a) of the Explanation to the said section as any wilful conduct which is of such a nature as is likely to drive a woman to commit suicide. When there is demand of dowry, the case comes under clause (b) of the Explanation to Section 498-A, IPC. Further, as per Section 113-A,Evidence Act when the question is whether commission of suicide by a woman had been abetted by her husband or any relative of her husband and it is shown that she had committed suicide within a period of seven years from the date of her marriage and that her husband or such relative of her husband had subjected her to cruelty, the court may presume that such suicide had been abetted by her husband or by such relative of her husband.
Hon’ble Supreme Court, in Girdhar Shankar Tawade v. State of Maharashtra, (2002) 5 SCC 177 : 2002 SCC (Cri) 971, examined the scope of the Explanation added to Section 498-A, IPC, and held as follows:
“3. The basic purport of the statutory provision is to avoid ‘cruelty’ which stands defined by attributing a specific statutory meaning attached thereto as noticed hereinbefore. Two specific instances have been taken note of in order to ascribe a meaning to the word ‘cruelty’ as is expressed by the legislatures: whereas Explanation
(a) involves three specific situations viz. (i) to drive the woman to commit suicide or (ii) to cause grave injury or
(iii) danger to life, limb or health, both mental and physical, and thus involving a physical torture or atrocity, in Explanation (b) there is absence of physical injury but the legislature thought it fit to include only coercive harassment which obviously as the legislative intent expressed is equally heinous to match the physical injury: whereas one is patent, the other one is latent but equally serious in terms of the provisions of the statute since the same would also embrace the attributes of Kant Nirmal 2014.02.26 17:36 I am the author of this document high court chandigarh ‘cruelty’ in terms of Section 498-A.”
In Gananath Pattnaik v. State of Orissa, (2002) 2 SCC 619 : 2002 SCC (Cri) 461, the Hon’ble Supreme Court held that the concept of cruelty under Section 498-A, IPC, and its effect under Section 306, IPC, varies from individual to individual depending upon the social and economic status to which such person belongs. It was held that cruelty for the purpose of offence and the said section need not be physical. Even mental torture or abnormal behaviour may amount to cruelty or harassment in a given case.
Harassment, of course, need not be in the form of physical assault and even mental harassment also would come within the purview of Section 498-A, IPC. Mental cruelty, of course, varies from person to person, depending upon the intensity and the degree of endurance, some may meet with courage and some others may suffer in silence, however, to some it may be unbearable and a weak person may think of ending his life.
To attract the ingredients of Section 498-A, IPC, it is for the prosecution to prove that the accused subjected the deceased with cruelty and harassment and such cruelty and harassment drove her to commit suicide. Section 113-A, Evidence Act does not create an offence or make it punishable. It only deals with presumption which the Court may draw in a particular fact situation as contemplated under the provision. Presumption under Section 113-A, Evidence Act would obviously arise only when the necessary ingredients in order to attract that provision, are established. It is Kant Nirmal 2014.02.26 17:36 I am the author of this document high court chandigarh required that it should be proved that suicide has been committed by a woman and there should be an allegation of abetment by her husband or any relative of her husband or that she has been subjected to cruelty and such presumption is extendable upto a period of seven years from the date of marriage. Presumption under Section 113-A, Evidence Act is not conclusive, but is rebuttable. The mere fact that a woman committed suicide within seven years of her marriage and that she had been subjected to cruelty by her husband or any relative of her husband, does not automatically give rise to the presumption that the suicide had been abetted by her husband or any relative of her husband. The Court is required to look into all the other circumstances of the case. One of the circumstances, which has to be considered by the Court, is whether the alleged cruelty was of such nature as was likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health of the woman. Where the death of the deceased is in unnatural circumstances, it is necessary to raise presumption under Section 113-A, Evidence Actthat having regard to all the circumstances of the case, the suicidal death of the deceased had been abetted by her husband. Section 113-A, Evidence Act relates to the offences under Sections 498-A and 306 of IPC, whereas Section 113-B, Evidence Act relates to Section 304-B, IPC. Whereas in terms of Section 113-A , Evidence Act, the prosecution is required to prove that the deceased was subjected to cruelty and in terms of Section 113-B,IPC, the prosecution must prove that the deceased was subjected by such Kant Nirmal 2014.02.26 17:36 I am the author of this document high court chandigarh person to cruelty or harassment for, or in connection with, any demand for dowry.
Presumption of abetment of suicide can be drawn only when the prosecution has discharged the initial onus of proving cruelty and commission of sui cide by the deceased. The Court should not mechanically resort to a strait-jacket approach in applying the provisions of Section 113-A, Evidence Act for raising a presumption of abetment of suicide. Presumption under Section 113- A, Evidence Actrefers to one of the three ingredients of abetment as defined in Section 107, IPC i.e., instigation, conspiracy and intentional aiding of the act. In order to raise a presumption under Section 113-A, Evidence Act, the facts and circumstances should be such as can reasonably sustain a presumption about the existence of a nexus of cause and effect between the cruelty and suicide. In the absence of any evidence to show that the deceased was being harassed within the meaning of Explanation of Section 498-A,IPC, presumption under Section 113-A, Evidence Act cannot be raised.
It has been held in a catena of decisions that in a criminal trial, the degree of proof is stricter than what is required in a civil proceeding. In a criminal trial however intriguing may be the facts and circumstances of the case, the charges made against the accused must be proved beyond all reasonable doubts and the requirement of proof cannot lie in the realm of surmises and conjectures. The requirement of proof beyond reasonable doubt does not stand altered even after the introduction of Section 498-A Kant Nirmal 2014.02.26 17:36 I am the author of this document high court chandigarhIPC, and Section 113-A Evidence Act. Although the Court’s conscience must be satisfied that the accused is not held guilty when there are reasonable doubts about the complicity of the accused in respect of the offences alleged, it should be borne in mind that there is no absolute standard for proof in a criminal trial and the question whether the charges made against the accused have been proved beyond all reasonable doubt must depend upon the facts and circumstances of the case and the quality of the evidence adduced in the case and the materials placed on record. The doubt must be of a reasonable man and the standard adopted must be a standard adopted by a reasonable and just man for coming to a conclusion considering the particular subject-matter.
It is nobody’s case that the deceased was subjected to harassment with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or on account of failure by her or any person related to her to meet such demand. Case of the prosecution, in fact, is that the appellant pressurized the deceased to arrange matrimonial relationship of his younger brother with daughter of uncle of the deceased. Thus, second part of the Explanation appended to Section 498-A, IPC, is not attracted. Question, therefore, remains whether appellant exhibited a wilful conduct of such a nature as was likely to drive the deceased to commit suicide or to cause grave injury or danger to her life, limb or health, whether mental or physical? Before endeavouring to answer this question, it, in fact, needs to be found out if the Kant Nirmal 2014.02.26 17:36 I am the author of this document high court chandigarh deceased committed sui cide.
According to Dr. B.S. Multani (PW7), the deceased was admitted in Civil Hospital, Kapurthala as a case of suspected poisoning, vide Bed Head Ticket, copy whereof is Exhibit PW7/B. PW6, Dr. Jatinder Kaur conducted post mortem examination on the dead body of the deceased. According to her the deceased was alleged to have died because of taking of some pills/poison. She sent stomach and its contents, small and large intestines and their contents, liver, spleen and kidneys of the deceased for chemical examination. Report of Chemical Examiner, Exhibit PW6/G, however, reveals that no poison was detected in the contents of above mentioned organs and their contents. PW6, Dr. Jatinder Kaur has further clarified that in her report though she had mentioned that it was a case of poisoning but, as a matter of fact, it was a suspected case of poisoning and in view of the report of chemical examination it was not a case of poisoning even. This takes the very foundation away from beneath the edifice of the prosecution story.
The factum of admission of the deceased in Civil Hospital, Kapurthala on 23.06.2000 (as recorded in Exhibit PW7/B, copy of Bed Head Ticket) has to be read in conjunction with the evidence of witnesses examined in defence. According to DW1, Dr. Dev Raj, the deceased was referred to him for blood and urine test on 09.02.1999 and as per his report, Exhibit DA, Hb was found to be 11 gms. as against normal 12.5 to 15.5 gms., and the urine was found to have pus cells. According to Dr. Harjit Singh, Surgeon, Kant Nirmal 2014.02.26 17:36 I am the author of this document high court chandigarh Sacred Heart Hospital (DW2), the deceased was brought to his hospital on 08.05.2000 (Exhibit DB) and was examined by him on 11.05.2000 and then on 24.05.2000. DW3, Pritam Singh has gone on record to say that the deceased would remain ill and was first treated at Sacred Heart, Hospital and then at Civil Hospital, Kapurthala where she died. Even PW1, Gurnam Singh, father of the deceased, has admitted, though, under the stress of cross-examination, that the appellant had taken the deceased to Sacred Heart Hospital for treatment and that the deceased had told him of her ailment on phone. He has also admitted that on 23.06.2000 the appellant had conveyed to him on phone that the deceased was seriously ill and was admitted in Civil Hospital, Kapurthala. The statement, Exhibit PA, is conspicuously silent as regards death of the deceased by poisoning and PW Gurnam Singh, maker of this statement, has admitted that he did not state before the police that the deceased died of poisoning.
PW2, Avtar Singh has also admitted in his cross- examination that the deceased remained under the treatment of a doctor for a week and that PW Gurnam Singh had brought him to Civil Hospital, Kapurthala on being informed by the appellant that the deceased was lying admitted in that hospital.
PW3, Harjinder Kaur, mother of the deceased has also admitted that the appellant had informed on phone that the deceased was ill and was admitted in Civil Hospital, Kapurthala and she has not denied the fact that the deceased was examined on 24.05.2000 Kant Nirmal 2014.02.26 17:36 I am the author of this document high court chandigarh in Sacred Heart Hospital.
Above cited circumstances render the story of the prosecution that the deceased committed sui cide highly suspected, if not unbelievable.
Be that as it may, the allegations regarding ill treatment of the deceased by or at the behest of the appellant are exceptionally vague and general in nature. Firstly, asking the deceased to ask her uncle to marry his daughter to the younger brother of the appellant cannot be such a circumstance as could lead the deceased to take the extreme step. Secondly, no specific instances and manner of “ill- treatment” or “harassment” have come forth. Thirdly, even as per case of the prosecution, after 18.06.2006 nothing of the sort was heard from the deceased. Fourthly, as admitted by PW Gurnam Singh the matter was not brought to the notice of village Panchayat. It is not shown to have been brought to the notice of police and/or civil authority.
In the consequence, findings of conviction recorded by the learned Sessions Judge and consequent award of punishment to the appellant cannot be allowed to sustain and are hereby set aside. The appeal accordingly, succeeds, and is allowed and the appellant is acquitted of the offence charged against him. The appellant is on Kant Nirmal 2014.02.26 17:36 I am the author of this document high court chandigarh bail. His bail bonds are discharged.