Dalip Singh v. State Ofhry.
-1IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH SR. No.202 Decided on:15.05.2023 Dalip Singh ...Appellant
Versus
State of Haryana
...Respondent
CORAM:
HON'BLE MR. JUSTICE N.S. SHEKHAWAT
Present:
Mr.Himanshu Sharma, Advocate for Mr.Ravi Kant Sharma, Advocate, for the appellant.
Ms. Sheenu Sura, DAG, Haryana.
N.S. SHEKHAWAT, J.
1.
The present appeal is directed against the judgment of conviction dated 08.02.2007 and order of sentence dated 10.02.2007 passed by the learned Additional Sessions Judge (Fast Track Court), Bhiwani, whereby the accused-appellant, namely, Dalip Singh was convicted for the offence punishable under Section 306 IPC and sentenced to undergo rigorous imprisonment for a period of four years and to pay a fine of Rs.2,000/- with a default stipulation. However, Khajani Devi (co-accused) and Dalip Singh (present appellant) were acquitted of the charge under Section 120-B IPC by the learned trial Court. 2.
As per the case of the prosecution, on 10.07.2004, Bimla Devi, complainant/wife of the deceased, moved an application to the police for taking action against the police officials for instigating her husband Hari Singh to commit suicide. As per the complainant, on 06.07.2004, her brother-in-law (husband's elder brother) Parkash son of Ami Lal and
-2Khajani Devi, co-accused, had a fight with each other and on this, Khajani Devi moved an application to the Police Station Loharu. HC Dalip Singh (appellant) and ASI Mahavir had come to apprehend Parkash, who was not found at home. However, the police officials had been continuously harassing them by visiting time and again and had searched their house and had abused the women folk as well. They informed SHO Loharu in this regard and was requested not to harass the complainant side. She had further averred that in the evening of 08.07.2004, the police visited her residence and abducted her husband Hari Singh. Her husband was badly beaten up and was freed with the condition that he would produce his brother Parkash on the next morning, otherwise he would be done to death.
Her husband disclosed all the facts to her and he was so frightened that he neither ate anything nor slept. On 10.07.2004, in the morning her husband Hari Singh went to the well of Om Parkash and asked him to get the matter settled, otherwise the police would kill him. At that time, Om Parkash and Paras Ram, uncle of Hari Singh, were also present there. Her husband committed suicide by jumping into a well. She further alleged that Khajani Devi, coaccused (who has been acquitted by the learned trial Court) was having illicit relation with the police officials and they had forced her husband to commit suicide after beating him and prayed for legal action against them. After the registration of the FIR, the investigation was conducted by the police and the final report under Section 173 Cr.P.C.
was presented against the present appellant as well as Khajani Devi, co-accused. 3.
After considering the contents of the final report under Section 173 Cr.P.C., the learned trial Court ordered framing of charge under Sections 306/120-B IPC against the appellant and Khajani Devi. The accused pleaded innocence and claimed trial.
-34.
In support of the charge, the prosecution had examined 14 witnesses and thereafter the evidence was closed by the prosecution. The prosecution examined PW-1 HC Sat Narain, who stated that ASI Mahavir Singh never visited the house of Hari Singh nor called him. HC Dalip Singh (appellant) had enquired the matter on the complaint of Khajani Devi, coaccused. The prosecution further examined PW-2 HC Galla Ram, who was posted as HC at PS Loharu on 09.07.2004. He stated that Dalip Singh, accused, was posted as IO at PS Loharu on 06.07.2004 and he was doing the work of MHC at PS Loharu on that day. Khajani widow of Shyam Lal, coaccused, had given an application against Om Parkash alias Parkash son of Ami Lal for beatings. HC Dalip Singh (appellant) got the medical examination of Smt. Khajani Devi done from CHC Loharu through C. Satpal Singh.
Dalip Singh (appellant) was investigating this matter and ASI Mahavir Singh never investigated this case. Still further, HC Dalip Singh (appellant) had gone to Loharu for investigation of this matter and he had called upon Hari Singh before arrival at PS Loharu. HC Dalip Singh was let off on the request of someone. In his cross-examination, he admitted that in DDR Ex.DA, his presence was not shown along with ASI Mahavir Singh. His name did not figure in Ex.PA and Ex.PB. As per DDR Ex.PD, HC Dalip Singh (appellant) himself had not visited the hospital and he had sent Constable Satpal No.960 for medical examination of Khajani. However, all injuries were simple in nature and no cognizable offence was made out. So no proceedings were started by the police in this regard. Vide DDR No.3 dated 08.07.
2004 at about 8:15 AM, HC Dalip Singh was shown departed with SI Rattan Singh for patrolling. The prosecution further examined PW-3 Dr. R.S. Punia, who conducted the post-mortem examination on police request Ex.
-4I.
A lacerated wound of 5x2 cm present on middle aspect of right arm on dissection humorous found fracture at the junction of lower and middle 1/3rd. Clotted blood was present on dissection fracture of femur present with clotted blood. Echhymoiss was present.
II.
Deformity of right thigh present on dissection fracture of femur present with clotted blood. Echhymoiss was present.
III.
Deformity of left thigh present on deeper dissection. There was fracture of femur present with clotted blood. Echhymoiss was present.
IV.
Deformity of chest right side present on dissection 5th, 6th and 7th ribs were found present and clotted blood was found.
V.
Diffuse contusion on right side of chest laterally. Echhymoiss was present.
5.
As per PW-3, the cause of death in this case was due to shock and hemorrhage due to multiple injuries to vital organ, which were sufficient to cause death in normal course of life. In his cross-examination, he stated that the possibility could not be ruled out that injuries No.1, 2, 3 & 4 were caused by fall into the well. The testimony of PW-4 Jagbir Singh Patwari is formal in nature. The prosecution further examined PW-5 ASI Laxman Singh, who stated that HC Dalip Singh (appellant) was working as MHC on 06.07.2004 and he had not left the police station on 06.07.2004. When he returned from the Court on 06.07.2004, MHC was present at the seat of MHC. The prosecution further examined PW-6 MHC Ghisa Ram and as per him, a report DDR No.3 dated 06.07.2004 was made by HC Dalip Singh (appellant). He also admitted that on 06.07.2004, Dalip Singh, appellant, was working as MHC on his seat and he recorded the statement of Khajani Devi and deputed Constable Satpal for medical examination. As per DDR
-5No.36, at about 7.00 AM on 07.07.2004, HC Dalip Singh left the police station for collecting the record at Rohtak in FIR No.70/2004 and the copy of the same is Ex.DC. As per him, vide DDR No.26 dated 07.07.2004, HC Dalip Singh returned from Rohtak at about 9:30 PM and the copy of the same was Ex.DD. On 08.07.2004 at about 8:15 AM, Dalip Singh left police station along with SHO Ratan Singh vide DDR Ex. DE and vide DDR No.24 dated 08.07.2004, HC Dalip Singh (appellant) returned back with SHO at about 9:00 PM and a copy of the said DDR entry was Ex.DF. Same is the case on 09.07.2004, when the appellant went with SI/SHO and returned along with him only. The testimony of PW-7 Dharampal was formal in nature. The prosecution further examined PW-8 Dr. Sanandan Mainwal, who had medico legally examined Khajani Devi.
Even the testimony of PW-9 Ajay Kumar, photographer, was formal in nature. The prosecution examined PW-10 Bimla Devi, wife of the deceased, who supported the case of the prosecution and stated that her husband had committed suicide by jumping into the well due to torture and fear of police officials. As per her, Dalip accused and Mahavir ASI lifted her husband to police station on 08.07.2004 from their house and she had moved the application Ex.PB in this regard. PW-11 Om Parkash also supported the testimony of PW-10 Bimla Devi. Similarly PW-12 Paras Ram also deposed on similar lines. The prosecution further examined PW-13 SI Rattan Singh, Police Station Jind, who was posted as SHO on the relevant day and had conducted the initial investigation in the present case.
The prosecution further examined Ram Avtar Inspector, CIA-II Bhiwani as PW-14, who also conducted some part of the investigation.
6.
After the closure of the evidence, the statement of the appellant was recorded under Section 313 Cr.P.C and he stated that he was innocent
-6and on the complaint moved by Khajani, he sent one constable for getting her medico legally examined and on that day, he was working as MHC of the police station. He never visited the place of occurrence on that day and had been falsely involved in the present case. Few documents were tendered in defence, however, no other witness was examined by the defence. 7.
I have heard learned counsel for the parties and with their assistance, I have perused the record carefully. 8.
Learned counsel for the appellant vehemently argued that in the instant case, the learned trial Court had erred in law and facts and completely overlooked the evidence, which was produced by the prosecution. There was no evidence on record to show that the present appellant had instigated Hari Singh (since deceased) to commit suicide. Rather it was apparent that Khajani Devi had moved a complaint against Parkash (brother-in-law of complainant Bimla Devi).. He further submitted that the statement of PW-11 Om Parkash and PW-12 Paras Ram were shown to be present, however, their testimonies did not advance the case of the prosecution in any manner. Apart from that, the appellant was working as a Head Constable at PS Loharu and he was performing his duties as MHC on 06.07.2004 as MHC Galla Ram was leave on that day. Still further, the ingredients of the offence under Section 306 IPC are not attracted in the facts and circumstances of the present case and the impugned judgment is liable to be set aside.
9.
The submissions made by learned counsel for the appellant have been vehemently opposed by learned State counsel. The learned State counsel submitted that the testimonies of PW-10 Bimla Devi, PW-11 Om Parkash and PW-12 Paras Ram clearly establish that Hari Singh (since deceased) was tortured and terrorised in police custody and he was left with
-7no other option but to commit suicide. He further contended that HC Dalip Singh was the concerned Investigating Officer and he had tortured Hari Singh (since deceased). Thus, the present appeal is liable to be dismissed. 10.
I have heard considered the above-said rival submissions made by learned counsel for both the parties.
11.
Section 306 IPC defines abetment of suicide and the same reads as under:- "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." 12.
From a bare reading of the above stated provision of law, it is apparent that to constitute an offence under Section 306 IPC, the prosecution must establish (i) that a person committed suicide and (ii) that such suicide was abetted by the accused. Consequently, there has to be abetment for commission of the crime on the part of the accused. 13.
The parameters of "abetment" have been clearly enunciated in Section 107 of IPC and the same is reproduced below for ready reference:- "107. Abetment of a thing.-A person abets the doing of a thing, whoFirst.-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."
14.
As per the said section, a person can be said to have abetted in doing a thing, if he, firstly instigates any person to do that thing; or secondly, he engages one or more other person or persons in any conspiracy
-8for 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 an act or illegal omission, the doing of that thing.
15.
It has been held by the Hon'ble Supreme Court in the matter of Ude Singh and others Vs. State of Haryana, (2019) 17 SCC 301, as follows:- "16. In cases of alleged abetment of suicide, there must be a proof of direct or indirect act(s) of incitement to the commission of suicide. It could hardly be disputed that the question of cause of a suicide, particularly in the context of an offence of abetment of suicide, remains a vexed one, involving multifaceted and complex attributes of human behaviour and responses/reactions. In the case of accusation for abetment of suicide, the court would be looking for cogent and convincing proof of the act(s) of incitement to the commission of suicide.
In the case of suicide, mere allegation of harassment of the deceased by another person would not suffice unless there be such action on the part of the accused which compels the person to commit suicide; and such an offending action ought to be proximate to the time of occurrence. Whether a person has abetted in the commission of suicide by another or not, could only be gathered from the facts and circumstances of each case.
16.1. For the purpose of finding out if a person has abetted commission of suicide by another, the consideration would be if the accused is guilty of the act of instigation of the act of suicide. As explained and reiterated by this Court in the decisions above referred, instigation means to goad, urge forward, provoke, incite or encourage to do an act. If the persons who committed suicide had been hypersensitive and the action of the accused is otherwise not ordinarily expected to induce a similarly circumstanced person to commit suicide, it
-9may not be safe to hold the accused guilty of abetment of suicide. But, on the other hand, if the accused by his acts and by his continuous course of conduct creates a situation which leads the deceased perceiving no other option except to commit suicide, the case may fall within the four corners of Section 306 IPC. If the accused plays an active role in tarnishing the selfesteem and self-respect of the victim, which eventually draws the victim to commit suicide, the accused may be held guilty of abetment of suicide.
The question of mens rea on the part of the accused in such cases would be examined with reference to the actual acts and deeds of the accused and if the acts and deeds are only of such nature where the accused intended nothing more than harassment or snap show of anger, a particular case may fall short of the offence of abetment of suicide. However, if the accused kept on irritating or annoying the deceased by words or deeds until the deceased reacted or was provoked, a particular case may be that of abetment of suicide. Such being the matter of delicate analysis of human behaviour, each case is required to be examined on its own facts, while taking note of all the surrounding factors having bearing on the actions and psyche of the accused and the deceased.
16.2. We may also observe that human mind could be affected and could react in myriad ways; and impact of one's action on the mind of another carries several imponderables. Similar actions are dealt with differently by different persons; and so far a particular person's reaction to any other human's action is concerned, there is no specific theorem or yardstick to estimate or assess the same. Even in regard to the factors related with the question of harassment of a girl, many factors are to be considered like age, personality, upbringing, rural or urban set-ups, education, etc. Even the response to the ill action of eve teasing and its impact on a young girl could also vary for a variety of factors, including those of background, selfconfidence and upbringing. Hence, each case is required to be dealt with on its own facts and circumstances.
-1016.
Still further, it has been held by the Hon'ble Supreme Court in the matter of Geo Varghese Vs State of Rajasthan and another, 2021 SCC OnLine SC 873 as follows:-
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( 17.
Keeping in view the above stated principles of law and the evidence led by the prosecution, this Court has to scrupulously examine as to whether the ingredients of the offence under Section 306 IPC would be attracted in the facts and the circumstances of the present case. In the instant case, it has been alleged by the prosecution that co-accused Khajani (who
-14has been acquitted by the learned trail Court) had moved a complaint against Parkash, brother of Hari Singh (since deceased). However, Parkash was not found at home and the present appellant as well as ASI Mahavir Singh had abducted Hari Singh and he was threatened and tortured by the police officials. While convicting the present appellant, the learned trail court had placed reliance on the testimony of PW-2 HC Galla Ram and held that Hari Singh (since deceased) was taken to police Station by HC Dalip Singh (appellant) illegally. It was further held that it was uncalled tactics adopted by the appellant by detaining Hari Singh and he was subjected to torture by the police. However, the deceased was let off with the direction to produce Parkash on the next morning.
It has been further held that PW-11 Om Parkash assured Hari Singh (since deceased) that no action would be taken against him, still the deceased opted to end his life by jumping into a well. In arriving at this conclusion, the learned trail Court also placed reliance on the testimonies of PW-10 Bimla Devi, PW- 11 Om Parkash and PW-12 Paras Ram. However, this Court has examined the evidence in detail and the finding recorded by learned trail Court are liable to be set aside. In fact the prosecution had examined PW-5 ASI Laxman Singh, who stated that on 06.07.2004, the appellant was working as MHC, as Ghisa Ram MHC was on leave. On that day, as per record Dalip Singh HC had not left the police station and when he returned from the Court on 06.07.2004, Dalip Singh HC was present at the seat of MHC.
The prosecution further examined PW-6 MHC Ghisa Ram, who had produced the entire record of the police station. As per record, he admitted that on 06.07.2004, Dalip Singh (appellant) was working MHC on his seat. As per DDR No.3 Ex.PD, the appellant had recorded the statement of Khajani Devi and deputed Constable Satpal for medical examination. Even vide DDR No.9 Ex.
-15made his report at 11:45 AM. As per DDR No.9, the present appellant had not left the police station as no cognizable offence was made out. Still further, as per DDR entry No.36, at about 7 AM on 07.07.2004, HC Dalip Singh left the police station for collecting the record at Rohtak in case FIR No.70/2004 and copy of the same was Ex.DC. Still further vide DDR No.26 Ex.DD at about 9:30 PM on 07.07.2004, the appellant returned from Rohtak. Vide DDR No.3 Ex.DE at 8.15 AM on 08.07.2004, the appellant left the police station along with SHO Rattan Singh in the area of police station and vide DDR No.24 Ex.DF at 9.00 PM on 08.07.2004, Dalip Singh HC returned back with the SHO. Vide DDR No.37 Ex.DG at about 6.00 AM on 09.07.2004, HC Dalip Singh left the police station along with SI/SHO and vide DDR No.27 Ex.DH at about 8:30 PM on 09.07.
2004, HC Dalip Singh returned to police station along with SHO. This witness also admitted that there was no marking on the statement of Khajani Devi and her MLR to make enquiry on the statement of Khajani Devi. He further admitted that in non-cognizable offences, a complaint can be enquired by an IO after marking it by the in-charge of the Police Station. 18.
From the above-referred evidence, it is evident that on 06.07.2004, the present appellant remained in the police station and did not leave the police station as he was performing the duties of MHC in absence of PW-6 MHC Ghisa Ram. On 07.07.2004, he left the police station for Rohtak and returned at 9:30 PM in the evening. Again on 08.07.2004, he left the police station at about 8:45 AM with SI/SHO Rattan Singh and returned at 9.00 PM with SHO only. Even on 09.07.2004, he left the police station at 6.00 AM with SI/SHO and returned at 8:30 PM. Thus, the official record produced by the said witness clearly testifies that Hari Singh (since deceased) was never associated during the course of investigation and there
-16was no question of abducting him by the present appellant. Apart from that, it was apparent that Khajani Devi, complainant, in the said complaint had suffered simple injuries, which did not make out any cognizable offence. The present appellant was working as an IO in the police station and the complaint could be enquired by him after marking it by the in-charge of the Police Station, whereas it was evident from the record, there was no marking on the statement of Khajani Devi and her MLR. Thus, even the inquiry was not conducted by the present appellant. In the instant case, except the bald statements of PW-10 Bimla Devi, PW-11 Om Parkash and PW-12 Paras Ram, there was no evidence was led by the prosecution to prove that Hari Singh (since deceased) was abducted by the appellant or was ever tortured by him. Rather from the prosecution evidence, it is evident that even the present appellant had not even initiated the enquiry on the complaint moved by Khajani Devi.
19.
Apart from that, PW-10 Bimla Devi, wife of the deceased, alleged that the present appellant had abducted Hari Singh (since deceased) and was physically tortured in police custody by the present appellant. The prosecution examined PW-3 Dr. R.S Punia, who along with other member of the Medical Board, had conducted postmortem on the dead body of Hari Singh (since deceased) and found the injuries as recorded in para No.4 of the judgment.
20.
As per him, the cause of death in this case was due to shock and hemorrhage due to multiple injuries to vital organs, which were sufficient to cause death in normal course of life and all the injuries were ante mortem in nature. In his cross-examination, he admitted that the possibility could not be ruled out that injuries No.1 to 3 and 4 were caused by fall into the well. This clearly falsifies the stand of PW-10 Bimla Devi that her husband Hari
-17Singh (since deceased) was tortured physically by the police and was badly beaten up in the police custody, as there were no corresponding injuries on the person of the deceased.
21.
Still further, from a bare perusal of the evidence led by the prosecution and the impugned judgment, it can be safely held that the learned trial Court had erred in recording a finding that there was sufficient evidence for convicting the appellant under Section 306 IPC, losing sight of the fact that there is no evidence on record indicating that the deceased was meted out with harassment by the appellant, just before his death. It is established that there was no evidence at all of physical torture by the appellant and the mens rea on the part of the present appellant was completely absent.
22.
Still further 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 leads the deceased to commit suicide finding no other option and the act must be such reflecting intention of the accused to push the deceased in such a position that he commits suicide. The prosecution has to establish beyond reasonable doubt that the deceased committed suicide and the appellant had abetted the commission of suicide of the deceased. In the present case, both the elements are absent. 23.
In view of the above discussion, it can be safely concluded that the learned trial Court did not appreciate the evidence led by the prosecution in the correct perspective and passed the impugned judgment by overlooking the settled canons of law. Thus, the present appeal succeeds and consequently, the judgment of conviction dated 08.02.2007 and order of sentence dated 10.02.2007 passed by the learned Additional Sessions Judge (Fast Track Court), Bhiwani, are set aside. The appellant is ordered to be
-18acquitted of the charges framed against him. The bail bonds of the appellant stand discharged and he may be released forthwith from the custody, if not on bail and if not required in any other case.
24.
(N.S. SHEKHAWAT) 15.05.2023 JUDGE mks Whether Speaking/Reasoned: YES / NO Whether Reportable:
YES / NO