State vs Ashu Bansal & Anr.
2009 Latest Caselaw 117 Del

                "REPORTABLE"
*     HIGH COURT OF DELHI AT NEW DELHI

+                      CRL. L.P. No. 54/2004

                             Date of decision : January 16, 2009

#     STATE                                    ..... Petitioner
!                      Through : Mr. Lovkesh Sawhney, APP
                                 SI Krishan Kumar

                               Versus

$     ASHU BANSAL & ANR.          ..... Respondents
^             Through : Mr. Arvind Nigam, Adv. with
                        Mr. Manoj Taneja, Adv.

%
      CORAM:
      HON'BLE MS. JUSTICE ARUNA SURESH

     (1) Whether reporters of local paper may be
         allowed to see the judgment?

     (2) To be referred to the reporter or not?              Yes

     (3) Whether the judgment should be reported
         in the Digest ?                                     Yes

                          JUDGMENT

ARUNA SURESH, J.

1. This is a petition under Section 378 (1) Code of

Criminal Procedure (hereinafter referred to as

'Cr.P.C.') for leave to appeal against the

judgment/order dated 12.2.2004 passed by the

learned ASJ whereby the accused persons were

acquitted of the offences under Section 306 IPC.

2. Leave granted. Let the petition be registered as an

appeal.

3. With the consent of learned counsel for the parties

I proceed further to decide the appeal.

Crl. Appeal No. 47/2009

4. Sh. C.D. Bansal sent a written complaint dated

21.4.1998 to Chowki Incharge, Police Station Saket

alleging that his son Sanjeev was being constantly

tortured and harassed by his wife Ashu Bansal and

his in-laws since after his marriage in February,

1991 soon after marriage, they started living as

husband and wife at Mumbai. They were blessed

with a son in the year 1992. Accused Jagdish Chand

Gupta had asked Sanjeev Bansal to make payment

for the jewellery and other gift items given in

marriage and on his default to do so jewellery and

other valuables were taken away by Jagdish Chand

Gupta. Accused Ashu Bansal, Sanjeev's wife, used

to torture him by hurling abuses and getting

physically violent. On various occasions (as detailed

in the complaint), she insisted Sanjeev to

purchase everything in her name irrespective of

the source of money. Though both of them

invested money jointly for one flat, but the said flat

was forcibly got registered by Ashu Bansal in her

name. In December, 1997, both the accused

persons allegedly came to the house of deceased

Sanjeev along with other persons and forcibly took

away household articles and other valuables and

accused Ashu Bansal allegedly instigated Sanjeev

to commit suicide under threat of killing him, in the

presence of Duty Officer, D.N. Nagar Police

Station, Bombay. Sanjeev left Bombay and came to

Delhi on 8.3.1998 and since then was residing with

his parents at E-43, Saket, New Delhi when on

12.3.1998 he committed suicide by hanging

himself.

5. On the fateful day, a telephone call was allegedly

received from Ashu Bansal at about 1.30 PM which

was firstly attended by the wife of the complainant

and then by deceased Sanjeev. Accused Ashu

Bansal is stated to have abused the complainant's

wife and told her that either Sanjeev should kill

himself or they would kill him. After talking on

telephone, Sanjeev appeared terrified and he

informed his mother that his wife used abusive

language and insisted that he should kill himself or

otherwise they would kill him. After receipt of the

telephone Sanjeev remained in the company of his

mother till 2.30 PM. It was at 3.00 PM when

complainant heard a shriek from his wife, he went

inside the room and was shocked to see that

Sanjeev was hanging. Doctor Sharma was called

and Sanjeev was taken to the hospital where he

was declared brought dead. Accordingly FIR was

registered on 22.5.1998 against the accused

persons for having committed offence under

Section 306/34 Indian Penal Code (hereinafter

referred to as 'IPC').

6. Prosecution examined as many as 18 witnesses in

support of its case. The Statement of the accused

persons under Section 313 Cr.P.C. was recorded

and after hearing the parties on merits, the trial

court opined that prosecution had failed to prove

its case against the accused persons beyond

reasonable doubt and therefore, was pleased to

acquit the accused persons of the offences charged

with.

7. Aggrieved by the said judgment of the trial court,

the State has filed the present appeal.

8. Learned APP for the State has argued that PW3

Raman Bansal, who happened to be the brother of

deceased Sanjeev, has categorically proved by way

of his testimony the letter Ex. P-1 purportedly

written by Sanjeev which was seized by the Police

vide Memo Ex. PW3/A and therefore, the trial court

committed an error in not accepting in evidence

document Ex. P-1 which was a suicide note left

behind by the deceased.

9. I do not find much force in the submission of the

learned APP for the State. The trial court did not

accept Ex. P-1 as sufficient evidence against the

accused persons for two reasons; firstly the

prosecution failed to produce any corroborative

evidence to prove that letter Ex. P-1 was written by

deceased Sanjeev and secondly this letter was not

recovered by the family members on the date of the

incident from the spot but on the next following

day. This letter was produced by PW3 Raman

Bansal and handed over to the Investigating Officer

on 13.3.2008. Bare perusal of document Ex. P-1

makes it clear that this letter is purported to have

been signed by Sanjeev Bansal and was not written

at the time when the signatures were apportioned

on it. There is a considerable space between the

written contents of the note and the signature

appearing at the bottom of the same. There is

enough space wherein something more could be

incorporated. Admittedly no complaint was made

to the Police even after the recovery of this letter,

though Police was informed when deceased was

removed to the hospital by the complainant and

other family members. Admittedly, the

Investigating Officer did not collect any other letter

written by the deceased or admitted handwriting or

signatures of the deceased on any document during

the investigation of the case, though it has come in

evidence that deceased used to write letters to his

brother Raman Bansal as well as to his parents.

The Investigating Officer did not send Ex. P-1 along

with admitted handwriting and signatures of the

deceased for handwriting expert opinion. Even if

Ex. P-1 was written by the deceased soon before

his death, there was no evidence available on the

record for the trial court to assess and reach to a

conclusion that this letter was written by deceased

Sanjeev Bansal. Intriguingly, this letter was

addressed to the Magistrate, Bombay High Court.

If that was so, why this letter was not dispatched

goes unexplained. This casts a cloud on the

prosecution case and possibility is that this letter

probably was never written at Delhi nor was

recovered as alleged. Besides this letter is not

indicative of the fact that deceased was abetted to

and driven by accused Ashu, his wife, to commit

suicide.

10. Under Section 67 of the Indian Evidence Act, if a

document is alleged to be signed or to have been

written wholly or in part by any person, the

signature or the handwriting of so much of the

document must be proved to be in that person's

handwriting. Opinion of handwriting expert is

relevant so as to enable the Court to form an

opinion as to the person by whom questioned

document was written or signed. Letter Ex. P-1

was not written by the deceased in the presence of

Raman Bansal. Prosecution did not take any expert

opinion to establish that letter Ex. P1 was written

by the deceased.

11. Learned APP for the State has submitted that the

requirement of Section 67 of the Indian Evidence

Act is only that the handwriting must be proved to

be that of the person concerned and in order to

prove the identity of the handwriting, any mode

accepted by law can be resorted to. He has

referred to Gulzar Ali v. State of H.P. - (1998) 2

SCC 192.

12. Proposition of law as laid down in the said case is

not in dispute.

13. Two modes accepted by law are indicated in

Sections 45 and 47 of the Indian Evidence Act.

Section 45 permits expert opinion to be regarded

as relevant evidence and Section 47 permits

opinion of any person acquainted with such

handwriting to be regarded as relevant evidence.

14. In this case as discussed above, prosecution has

not been able to bring on record convincing

corroborative evidence to prove that Ex. P-1 was

written by the deceased. Why the letter could not

be traced out on the date of the incident when

Investigating Officer had gone to the residence of

the complainant and searches were made; why this

letter could be recovered only on the next following

day and why no complaint was lodged with the

police despite recovery of the letter, are all

unexplained factors which create a reasonable

grave doubt in the mind of the court if at all this

letter was written and signed by the deceased,

specially when no other document written or

signed by the deceased was handed over to the

Police during the investigation of the case. In the

absence of any corroborative evidence, even the

Court could not exercise its power under Section

73 of the Evidence Act and compare the disputed

handwriting and signatures with the admitted

handwriting and signatures in order to ascertain

whether the signature or the handwriting on Ex. P-

1 was that of the deceased.

15. Deceased was not having cordial relationship with

his wife since after his marriage. He had left

Bombay on 8.3.1998. He committed suicide on

12.3.1998 i.e. after four days of his coming to

Delhi.

16. The trial court observed that PW4 Kaushalya Devi,

mother of the deceased, who had narrated the

alleged threat extended by Ashu Bansal on

telephone on the fateful day could not be believed

because there was no mention of any such phone

call made by accused Ashu Bansal in the FIR. PW3

Raman Bansal in his statement Ex. PW18/C had

stated that he was told by his brother that he had

come to Delhi to his parents from Bombay for

reconciliation with Ashu. He had also stated that

nobody was to be blamed for the said incident.

The complaint was made thereafter about one

month and ten days of the incident i.e. on

21.4.1998 and FIR was registered after about more

than two months of the incident on 22.5.1998.

17. As regards jewellery etc. accused Ashu Bansal

being wife had full right to take her jewellery and

other valuables being her istridhan from the

deceased even when she was residing with him.

Accused Jagdish Chand Gupta had taken away the

jewellery and other valuables from the deceased on

18.11.1997. Therefore, this could not have been a

cause for Sanjeev to commit suicide.

18. Learned APP for the State has submitted that it is

not material that complaint was not made initially

on the date of the occurrence keeping in mind that

the family was in mental shock and therefore, the

delay in lodging of the FIR is not fatal to the case.

These submissions are devoid of any merits.

19. Police was informed of the incident on the same

day and the Investigating Officer had gone to the

hospital and found the dead body of Sanjeev lying

in the hospital, post-mortem was got conducted on

the dead body, the family was indeed in its frame of

mind to lodge an FIR alleging that Sanjeev was

abetted by his wife to commit suicide. The Police

could have been informed of the alleged telephone

call received from Ashu Bansal and threats

extended by her on telephone to Kaushalya Devi as

well as to the deceased.

20. It also weighed in the mind of the trial court that

deceased was in the protective company of his

parents. After receipt of threats from his wife on

telephone, he sat with his mother for quite some

time before retiring to his room and he had

sufficient time with him to share his grief with his

mother. Rightly so, because a person is prone to

commit suicide on spur of a moment when he is

unable to fight with his depression or emotional

turmoil or acute sense of insecurity or alleged

instigation which might drive him to commit

suicide. If the crucial moment is fought and won

over or passes away mental and emotional

capabilities as well as rationality in thought retreat

and a person thinks twice before taking drastic

step to commit suicide. Deceased had enough time

to overcome his shaken and upheavaled feelings

and rippled emotions because of threats allegedly

received from his wife on telephone. He was not

apprehending immediate danger to his life at the

hands of any of the accused persons who were at

Bombay at the relevant time. The mere fact that

deceased was maltreated by his wife would not

create such circumstance which would have made

deceased to end his life and any such maltreatment

or ill-treatment at the hands of the wife at Bombay

under no circumstances would amount to abetment

within the meaning of Section 107 of IPC.

21. The trial court referred to all the circumstances

including letter Ex. P-1 highlighting the

deficiencies in the prosecution evidence while

directing acquittal of the accused persons.

22. The appellate court generally should not interfere

with an order of acquittal keeping in mind the fact

that presumption of innocence of the accused is

further strengthened by acquittal. The golden

thread which runs through the web of

administration of justice in criminal cases is that if

two views are possible on the evidence adduced in

the case, one pointing to the guilt of the accused

and the other to his innocence, the view favouring

the accused is to be adopted. It is the duty of the

Court to keep in mind that miscarriage of justice is

prevented. The Court should only interfere in the

order of acquittal when it is of the view that there

are compelling and substantial reasons for doing

so. If the impugned judgment is apparently

unreasonable and relevant and convincing evidence

has been unjustifiably eliminated in the process,

the Court has compelling reason to interfere

therein.

23. In this case neither the judgment shows any

unreasonability in assessment of the evidence and

other material available on record, nor the Court

has ignored any convincing material on record

which could raise a finger towards the guilt of the

accused persons.

24. The trial court has précised its opinion in para 7 of

the judgment in detail to reach to a conclusion that

prosecution had failed to prove its case beyond any

shadow of reasonable doubt i.e. Sanjeev had

committed suicide on the instigation of the accused

persons.

25. Admittedly there is no specific immediate incident

which could directly relate to commission of suicide

by the deceased as the earlier incidents could at

best be the case of cruelty but not of abetment. I

find no illegality or infirmity in the order of the trial

court. Hence, the appeal is accordingly dismissed.

26. The trial court record be sent back.

27. Attested copy of the order be sent to the trial court.

(ARUNA SURESH) JUDGE January 16, 2009 jk