High Court of Punjab and HaryanaCRA-S/1767/2003allowed

Vinod Kumar Etc. v. Stat Eof Pb.Etc.

2024-08-21Ms. Justice Harpreet Kaur Jeewan37 pages

!"#$%& '

) *+$, -. .$%& '

) 0 1 ''''''22 0 '

3''' & 4 2' 1 5

1 56 '

# $% $& %$$'

) * # + , (

) '$-.+ / " 01$ 2 'the IPC'3

4/5

6- %% $& %$$$ #

) '$% '$-.+ /" ) + + %

# #

$6 ( ( 5 8$$$9.

# #

%. ( ( $1 $& %$%$ - % $& %$$$ ( # %- (

, ( #

;

%.5 ;

'.) ( 7 ..

( ,( #

.: # # # <

7 &&0 # . = ,(

(

,( # 5 $$$9.

, # . , #

., , ,

# 5 %$$$$9.

# ,

;

7 &&&

= # 5 $$$9.

shagan #

(

# #

5 $$$9.

(

! # > (

# .;

? # > .

+ 2 3 ,

( , (

# %$ $& %$$$ , # .)

" # # +

7" ?

, # , (

# :

;

3 5 ;

%3 ) ( 7

'3 ) ;

) 5

;

) 8 % )/ ) #

, 2A=

4/5 #

( "

, . = !

( 8 '

)/ ), ) # # )/ ) # Can 2 3 ; = , ( ,

B chappals2 3

# 2Cchallan')

) 6'

" " &6'

" ) " %8 %$$$ 8 - " prima facie

) '$% /"

) '- /"

#( # # . %- $ %$$ #

) '$-.+ /"

, . #

( "

) ' & " "

$6 %$$

" # # , (

" %0 %$$

( , #.

%6 $6 %$$% ,

#. %- $ %$$

= (

5+7 -$89:*.%*%+0# *!;* 7 #

2A=

4/5 # 1 %

5 *!$<*%.68$+7!$,+7".-+.8#-* # : D.

) # :

;

. $- % &&0 ,( # # A

,( ! % $& %$$$

(

( 7"

(

( 1 '

5 =:#=*86,

% $& %$$$ $- 8

: . #.

< # ) "

? 2D13 #( # 7" ?

--8

;

? 5 ;

) ( 7

( #( , 7" ,

1-8 ') 5 6 $$9 7*%# ,

% $& %$$$

5 2D.%3 (

, 7" ?

D.%.5

5 #

'(5> !'''$$-76#.-*:,,.-!6.".:$ 9.+*:62=#7.*%*6 # %% $& %$$$ =

( # %- ( =

(

)

( = # # #

, % , ( # '

D - 4

( , # ,

(

/ .= (

(

( , ##

# (

( ' 56

$-+$!*%#9.%?7 7*%?$6 .#%+=!?!@

9*!+8%+6 62=#7.*%*6 % $& %$$$ $8

.,.5 ;

# (

= ( #

@ = = ( 08.&$E #

(

2A=

( = , ,

# # % )

(

&$E #

(

% $& %$$$ 188

/ = ( (

(

/ ,

(

! < " 4

)

(

1 6 5)6 A*!*% .%?76 *# $% +*B:6 $:.- +*+.$%

7*%*=:*

+ (

CMalkhana'

1 0 5(6 " *<6 !*,+ 8*% 2A= "3

? ,

1 & 5/ =!#.+ .%?76 6 $:.- +*+.$% 7*: 1*:*% %% $& %$$$ # 7" ?

: )

;

" 4/5 2A= 9%3

(

;

" ?

( 2A= 43

) # "

> 1 $ 56 % 9-+$! *+A*%+ .%?76 %-7*!? %+. !*=# +*,,6*% * %% $& %$$$

;

A= @ Can ( ) %

( CChapals'

, !( ,

, ,

A= A @ %' $& %$$$ ,

, ! %8 $& %$$$ 5 .

, , @ %0 $ %$$$ #

5 5 " ,

5 6$% +*B:*!*.%?76$:.-+*+.$%1$+6 *!%*:*6 , 2A= *3

1 % 4 ) ? ( 5 2A= $3 >

Can

# 3

@ >

) ' '

" "

, , ( # #

;

( )

# (

5 '

( ,

(

4/5 # # 6 %

%.) ( 7

;

, ( # )

%$ $& %$$$ %' $& %$$$

. = $0

!'*!C*%1=8*!6#.-*:,,.-!6 %+*:6 *!%*:* 5 % $& %$$$

5 ;

2A= ++3 @7 #

0 %

*!%*.: 1*=!6 :!;6 .".: $ 9.+*:6 *!%*:* 5

# # 5 %8$$9.

7.(

;

0 '

7+*: 1=8*! 5 ? 9"

+.&0'$

;

2A= 7A3 .

;

0 - *%#9*!?6!$9'*!?$ 9.+*:6*.% *C*!6 5)6

.) ( 7

%$ $& %$$$ %' $& %$$$

) ( 7

0 8

!'*%#91=8*!6*%$ . 7*$ 9.+*:6 *!%*:* 5 (

# 2 3

# $ $' %$$$

( .

# (

( @7 2A= 73 (

# 2A= 79 3 / .=

$ $- %$$$

0 1

!'!$!*6*%*?.%? .!-+$!6!$!*=!$%+!6 7 *::6 .".: 2.% 6 2=#7.*%* 5

%1 $0 %$$$

2 3 @7

7 5

;

2 3

# (

( / = .

. = ! "

2 ! < 3

( ( / .= @7

0 6

!'7*+%*%?.6*+:=<$ 9+.*:2=#7.*%* 5/6

# @ %1 $0 %$$$ =

2 3 (

2 +3 / .=

# 0 0 *++*%7*%#6D'=%.-.9*:$=%-.::$!$,'' 7*#=!

5 6

# #

, !( # (

2 3

# + ?

& "

) '$- /"

#( ,

# ) '$% /"

& D

# ( " ( =

% $& %$$$ %9'$$ # #

# "

# 7" ?

! # # 7" ?

( , 1$$

6$$ = .: (

%% $& %$$$

# 7"

, :

$%$ " ( ( 5 '

4/5 # #

& %

, #

(

) '$% /"

(

D.%.5

5 D.1.5 " " ( D %.5

(

( , 08.&$

= ,(

%0 $& %$$$ D.%.

5 D.1.5 " (

& '

" #

(

) '$- /"

(

D. .: D.'.)

5 #

7 &&0 / (

, " Can

(

) (

& -

# ,

( #

7 !< ;

7D.

# # #

" ,

( (

/ 7 $ $- %$$$

, (

& 8 "

'.) ( 7

, %$ $& %$$$ %' $& %$$$ / , $ #

? # #

'.) ( 7 ,

(

D. .: D.'.)

5 ( # #

'.) ( 7

# ,( # ( #

! ( # # #

'.) ( 7 ( # # # (

'.) ( 7

(

# < % ? = =

, # ( ,(

# ) '$- /"

, ,( ( %$$$

) '.+ / A 06%

# ) '$- /"

(

B = "

%8 $6 %$$'

$%&'

(! !!

%$ '

, ,

(

+( D. .7 ) # +# ,

5 2.

., 3

.= 2D. 3 ( ( 7 2D. 3

(

< 4

Can

5 ( 7D.8 7 ) ;

, - @ )

" # ? ) (

.: 2D. 3 (

? )

( ( (

( #

? )

=.Can

/ # #( ) 5,

" ,

(

, % ( #

# B = "

#&"

)

(!*+, ! !( 0 $0 %$ 8

$-% ))

$(./ 0(++

- $& &&0 / .

/ ,( = D.%.5

5 D.1 5 "

(

( #

) '$% /"

& / # #

, # ,

(

, &$E

(

( (

) " "

, %0 $ %$$$

/ ,

(

" %$

( ,

, / =

) (

# ,

% /

! #

< 08.&$E #

, D. .: ( (

( 7D.8 7 ) ;

, # (

( 7D1.5 " A= " "

( 7D.6.7 @

(

% 7 /

(

# / # D.0 ) # )/

(

)(

# 2A=

/ # @

, ,

, F C+B

, Can %

F C"B

, = C7B

/ # #( %% % A=

D.8 7 5 7

, CB C+B C"B C7B

# 2A=

73 ,

2A=

( # ,

kachha

2 3

2A=

"3 # ,

( (

%% '

/ , / " #( ,

%% - ! #

(

( D.&.7 G ) ) ,

( = # # # ,

( D. 7 ) # +# , ,

%% 8 4

, # ( , %'

( (

" >

) '$% /"

( #( >

%- 4

D .:

23 :

;

2 3 # 2 3

A / # @

= Can

2chappal3

, %8

3.:

;

., ) ( 7

! " ( D 7 !<;

@ "

( 7

;

% $& %$$$

(

@7 #

A= 7"

5 %8$$9.

;

(

( 7D.% * ; "

(

) ( ( 7D.- 7 ) # #

,#(

" .

., ( ) ( 7

'3 < ( # %6 . .

., 5 ;

2 3

D. .7 ) # +#

(

9 A= D. .7 ) # +# # (

( 7

5 ;

# .

(

( / , > .

,( H %3 ,

( H %0 / , #

" %& # ) '$- /"

,( ,.

"304 B. Dowry Death

(1) Where the death of a woman is caused by any burns or bodily injury or occurs otherwise than under normal circumstances within seven years of her marriage and it is shown that soon before her death she was subjected to cruelty or harassment by her husband or any relative of her husband for, or in connection with any demand for dowry, such death shall be called "dowry death" and such husband or relative shall be deemed to have caused her death. Explanation - For the purpose of this sub section 'dowry' shall have same

) meaning as in Section 2 of the Dowry Prohibition Act, 1961 (28 of 1961).

(2) Whoever commits dowry death shall be punished with imprisonment for a term which shall not be less than seven years but which may extend to imprisonment for life." '$ ) '.+ A

"113 B: Presumption as to dowry death When the question is whether a person has committed the dowry death of a woman and it is shown that soon before her death such woman has been subjected by such person to cruelty or harassment for, or in connection with, any demand for dowry, the Court shall presume that such person had caused the dowry death. - For the purposes of this section 'dowry death' shall have the same meaning as in Section 304 B of the Indian Penal Code (45 of 1860)."

) '$-.+ /"

, ,

(

( ,

( #

) '$-.+ /"

# ,.

"(i) The death of a woman should be caused by burns or bodily

( injury or otherwise than under a normal circumstance. (ii) Such a death should have occurred within seven years of her marriage.

(iii)She must have been subjected to cruelty or harassment by her husband or any relative of her husband.

(iv) Such cruelty or harassment should be for or in connection with demand of dowry.

(v) Such cruelty or harassment is shown to have been meted out to the woman soon before her death"

'% B = "

.!*2*:0 '+*+$"+'$, 6

) ) '$-.+ /"

)

'.+ A

( B = "

"A conjoint reading of Section 113 B of the Evidence Act and Section 304 B IPC shows that there must be material to show that soon before her death the victim was subjected to cruelty or harassment. Prosecution has to rule out the possibility of a natural or accidental death so as to bring it within the purview of the 'death occurring otherwise than in normal circumstances'. The expression 'soon before' is very relevant where Section 113 B of the Evidence Act and Section B IPC are pressed into service. Prosecution is obliged to show that soon before the occurrence there was cruelty or

harassment and only in that case presumption operates. Evidence in that regard has to be led by prosecution. 'Soon before' is a relative term and it would depend upon circumstances of each case and no strait jacket formula can be laid down as to what would constitute a period of soon before the occurrence. It would be hazardous to indicate any fixed period, and that brings in the importance of a proximity test both for the proof of an offence of dowry death as well as for raising a presumption under Section 113 B of the Evidence Act.

The expression 'soon before her death' used in the substantive Section 304 B IPC and Section 113 B of the Evidence Act is present with the idea of proximity test. No definite period has been indicated and the expression 'soon before' is not defined. A reference to expression 'soon before' used in Section 114. Illustration (a) of the Evidence Act is relevant. It lays down that a Court may presume that a man who is in the possession of goods 'soon after the theft, is either the thief has received the goods knowing them to be stolen, unless he can account for his possession. The determination of the period which can come within the term 'soon before' is left to be determined by the Courts, depending upon facts and circumstances of each case. Suffice, however, to indicate that the expression 'soon before' would normally imply that the interval should not be much between the concerned cruelty or

harassment and the death in question. There must be existence of a proximate and live link between the effect of cruelty based on dowry demand and the concerned death. If alleged incident of cruelty is remote in time and has become stale enough not to disturb mental equilibrium of the woman concerned, it would be of no consequence."

/ / = ! # D.

: ,( #

# (

, ,( # # , # ,( # 5 $$$9.

! 5 %$$$$9.

7 &&&

5 $$$9.

## ( (

( ( D.'.)

.= #

(

., # D.

# ,( ,

/ #

;

# $ #

) (

( #

( (

!( ,

;

(

'8 +

!( (

# ##

( ,(

(

) '$-.+ /"

'1 / > ,

) -$0. /"

"498 A: Husband or relative of husband of a woman subjecting her to cruelty Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be

> punished with imprisonment for a term which may extend to three years and shall also be liable to fine.

Explanation - For the purpose of this section 'cruelty' means - (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." '6 (

C" (B # ,

)

( ,

( #

# / #

(

'0 / > ,

'& ) $6 /"

(

# ( #F

( ##

(

( #

(

#F (

(

# -$ ) '$1 /"

(

( = (

- B = " # # ) '$1 /"

%$45 % %

6 "

78 E

, ) '$1 / "

(

B = "

"xxx xxx xxx xxx

12. At the outset, we intend to address the issue regarding the applicability of Section 306 Indian Penal Code in the facts of the

present case. Section 306 deals with abetment of suicide and Section 107 deals with abetment of a thing. They read as follows :

"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.

*** 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."

13. The legal position as regards Sections 306 Indian Penal Code which is long settled was recently reiterated by this Court in the case of Randhir Singh v. State of Punjab, 2004(4) RCR (Criminal) 740: 2004(3) Apex Criminal 683 : (2004) 13 SCC 129 as follows in paras 12 and 13 :

"12. Abetment involves a mental process of instigating a person or intentionally aiding that person in doing of a thing. In cases of conspiracy also it would involve that mental process of entering into conspiracy for the doing of that thing. More active role which can be described as instigating or aiding the doing of a thing is required before a person can be said to be abetting the commission of offence under Section 306 Indian Penal Code.

13. In State of W.B. v. Orilal Jaiswal this Court has observed that the courts 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 transpires to the court that a victim committing suicide was hypersensitive to ordinary petulance, discord and differences in domestic life quite common to the society to which the victim belonged and such petulance, discord and differences

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."

14. Further in the case of Kishori Lal v. State of M.P., 2007(3) RCR (Criminal) 385 : 2007(3) RAJ 613 : (2007)10 SCC 797, this Court gave a clear exposition of Section 107 Indian Penal Code when it observed as follows in para 6:

"6. Section 107 Indian Penal Code defines abetment of a thing. The offence of abetment is a separate and distinct offence provided in Indian Penal Code. A person, abets the doing of a thing when (1) he instigates any person to do that thing; or (2) engages with one or more other persons in any conspiracy for the doing of that thing; or (3) intentionally aids, by act or illegal omission, the doing of that thing. These things are essential to complete abetment as a crime. The word "instigate" literally means to provoke, incite, urge on or bring about by persuasion to do any thing. The abetment may be by instigation, conspiracy or intentional aid, as provided in the three clauses of Section

107. Section 109 provides that if the act abetted is committed in consequence of abetment and there is no provision for the punishment of such abetment, then the offender is to be punished

) with the punishment provided for the original offence. "Abetted" in Section 109 means the specific offence abetted. Therefore, the offence for the abetment of which a person is charged with the abetment is normally linked with the proved offence." [See also Kishangiri Mangalgiri Swami v. State of Gujarat, 2009(1) RCR (Criminal) 947 : 2009(1) RAJ 675 : (2009)4 SCC 52]

15. Thus, this Court has consistently taken the view that before holding an accused guilty of an offence under Section 306 Indian Penal Code, the Court must scrupulously examine the facts and circumstances of the case and also assess the evidence adduced before it in order to find out whether the cruelty and harassment meted out to the victim had left the victim with no other alternative but to put an end to her life. It is also to be borne in mind that in cases of alleged abetment of suicide there must be proof of direct or indirect acts of incitement to the commission of suicide. Merely on the allegation of harassment without their being any positive action proximate to the time of occurrence on the part of the accused which led or compelled the person to commit suicide, conviction in terms of Section 306 Indian Penal Code is not sustainable.

16. In order to bring a case within the purview of Section 306 of Indian Penal Code there must be a case of suicide and in the commission of the said offence, the person who is said to have

( abetted the commission of suicide must have played an active role by an act of instigation or by doing certain act to facilitate the commission of suicide. Therefore, the act of abetment by the person charged with the said offence must be proved and established by the prosecution before he could be convicted under Section 306 Indian Penal Code.

17, The expression 'abetment' has been defined under Section 107 Indian Penal Code which we have already extracted above. A person is said to abet the commission of suicide when a person instigates any person to do that thing as stated in clause firstly or to do anything as stated in clauses secondly or thirdly of Section 107 Indian Penal Code. Section 109 Indian Penal Code provides that if the act abetted is committed pursuant to and in consequence of abetment then the offender is to be punished with the punishment provided for the original offence. xxx xxx xxx xxx"

-% B = "

3 -%

)89!*## /

(

> (

> ,

" .:

;

A .

., <

.: D.'.)

5 ( (

(

# ) '$1 /"

-- /

,. #

( ,

.5 ;

(

! < " 4 !

( D. 7 ) # +# 7" ?

, ( (

(

7 ) ;

27D.83 7 @ 27D.63 7 !

)# 27D.03 (

7 @ 27D.63 # (

(

-8

(

# #

## ( ,

( (

, ( ,(

( ,

) '$-.+ /"

" #(

-1 / ,

# " ,

) '$-.+ /"

) 1 5 *

Whether Speaking :

Yes/No Whether Reportable :

Yes/No