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Himachal Pradesh High Court · body

2000 DIGILAW 153 (HP)

RAVINDER KUMAR v. STATE OF H. P.

2000-07-03

M.R.VERMA

body2000
JUDGMENT : M.R. Verma, Judge : - This appeal is directed against the judgment dated 24-12-1999 passed by the learned Additional Sessions Judge (II), Kangra at Dharamshala, whereby the appellant/accused (hereafter referred to as the accused) has been convicted under Sections 498-A and 306 of the Indian Penal Code and has been sentenced to undergo rigorous imprisonment for a period of one year and to pay fine in the sum of Rs. 1,000/- and in default of payment of fine to undergo simple imprisonment for a period of three months under Section 498-A and to undergo rigorous imprisonment for three years and to pay fine in the sum of Rs. 2,000/- and in default of payment of fine to undergo simple imprisonment for a period of six months under Section 306 of the Indian Penal Code. 2. The case of the prosecution, in brief, is that Vandana (since deceased) was married to accused Ravinder Kumar in February 1997 and used to reside in his house in village Machhan (Balehar) with her mother-in-law Saroj Kumari and sister-in-law Veena Kumari (who were both arrayed as accused persons before the trial Court but had since been acquitted by the impugned judgment.) The accused was serving in Dubai and used to come to his house off and on. He had returned to his Village from Dubai some-time in or around March 1998. On 10-6-1998, PW-2 Sarita Bala, Member Gram panchayat Tang Narwana made a statement under Section 154 of the Criminal Procedure Code to ASL Duni Chand (PW-15) that her house is adjacent to the house of the accused who was in the habit of . drinking liquor daily and then subjected said Vandana to physical and mental cruelty by proclaiming that he had friendship with a number of girls abroad, Sayara and Punam being two of such girl, therefore, the deceased could go to the place from where she had come and he owed nothing to her father Three days before 10.6.1998 the accused had abused and beaten his wife Vandana and turned her out of his house. She took shelter in the house of Kartaro Devi (PW-4). On the morning of 10.6.1998 mother of the accused, however, brought Vandana back to her matrimonial house. At about 1.00 p.m. PW-2 was informed by Om Piari (PW-3) that the accused had beaten the deceased. She took shelter in the house of Kartaro Devi (PW-4). On the morning of 10.6.1998 mother of the accused, however, brought Vandana back to her matrimonial house. At about 1.00 p.m. PW-2 was informed by Om Piari (PW-3) that the accused had beaten the deceased. Therefore, PW-2 went to the house of the accused and found that in the upper storey of the house Vandana was lying unconscious. One empty vial having the super-scrimption Navon was lying by her side and at some distance a steel glass and "Garwi" and omitted material were lying. Vandana was removed to the Verandah of the lower storey. In the meanwhile a private medical practitioner also came there. However, by that time Vandana had died. It has further been stated by PW-2 that Vandana committed suicide because of the cruelty/atrocities committed by the accused and his mother and sister on the deceased. On the basis of this statement of PW-2 Sarita Bala Ext. PW-2/A, a formal First Information Report under Section 498-A/306 of the India Penal Code was recorded at Police Station, Dharamshala and the investigation in the matter commenced which was conducted by ASI. Duni Chand (PW-15). He took in possession the omitted material and preserved the same in a bottle which was sealed. The empty vial and other utensils lying near the dead-body were also taken into possession. During search of the house of the accused, three letters Exts. PW-12/A to PW-12/C were found and were also taken in possession. He prepared the inquest report Ext. PW-1/C ad PW-1/E and sent the dead-body for post mortem which was conducted by Dr. D.P. Swami (PW-1)and Dr. Archana and the post mortem report prepared by them is Ext. PW-1/B. As per the opinion given in the post mortem report Vandana died of asphyxia due to ingestion of poison greenish colour, however, the final opinion was reserved till the receipt of the report from the forensic Science Laboratory about chemical analysis of the viscera of the deceased. Such report is Ext. PA and as per the opinion given therein, the contents of an insecticide, i.e. Organs Phosphorous (Di-chlorowas) were found in the viscera. On the basis of this report the final opinion about the cause of death of Vandana as given by doctors who conducted the post mortem, is that Vandana died of asphyxia due to ingestion of organs phosphorous poison. PA and as per the opinion given therein, the contents of an insecticide, i.e. Organs Phosphorous (Di-chlorowas) were found in the viscera. On the basis of this report the final opinion about the cause of death of Vandana as given by doctors who conducted the post mortem, is that Vandana died of asphyxia due to ingestion of organs phosphorous poison. During the course of investigation, the police also took in possession letters Exts. PW-11/A to PW-11/D on production by Ajay Sharma (PW-12). One shirt of the accused lying on the spot was also taken into possession by the police vide memo. Ext. PW-13/E. Specimen signatures and hand-writing of the accused Exts. PW-14/A to PW-14/K and Exts. PW-15/1 to PW-15/21 were also obtained by the police. The Government Examiner vide Ext. PY, however, informed that the material supplied for comparison of the disputed writings, specimen writings and admitted writings was not sufficient. However, on the basis of the other material collected by the investigating agency, a charge-sheet against the accused, his mother and sister under Sections 498-A and 306 of the Indian Penal Code was submitted to the concerned Court. They were tried by the learned Additional Sessions Judge (II), Kangra at Dharamshala on the charges under Section 306 read with Section 34 and Section 498-A of the Indian Penal Code. 3. To prove the charge against the accused, the prosecution examined as many as 15 witnesses. 4. There are a few written/typed leaves on the record purporting to be the statements of the accused and his co-accused before the trial Court under Section 313, Cr.P.C. from which it can be inferred that the accused/appellant has not admitted the case of the prosecution. The accused, however, did not lead any evidence. 5. By the impugned judgment while acquitting the mother and sister of the accused of the charge against them, the accused was convicted and sentenced as afore-said. Hence the present appeal. 6. I have heard the learned counsel for the accused and the learned Additional Advocate General for the respondent and have also gone through the records. 7. The learned Additional Sessions Judge has convicted the accused on the basis of the statements of PW-5 Bal Krishan, PW-11 Rakesh Kumar, PW-6 Neeraj Sharma and PW-12 Ajay Sharma about the alleged beating of the deceased by the accused . 7. The learned Additional Sessions Judge has convicted the accused on the basis of the statements of PW-5 Bal Krishan, PW-11 Rakesh Kumar, PW-6 Neeraj Sharma and PW-12 Ajay Sharma about the alleged beating of the deceased by the accused . He has drawn support to their statements from the statements of PW-2 Sarita Bala, PW-3 Om Piari and PW-4 Kartaro Devi inasmuch as it emerges from their statements that the deceased wanted that the accused should not go to Dubai and to get this desire fulfilled, she had thrown the passport and other documents of the accused in a Kuhal and this desire of the deceased often led to quarrels between her and the accused. Two days before her death she had gone to the house of Kartaro Devi and was brought back by her mother-in-law on the day she committed suicide and a bluish mark of injury was also noticed on her left -shoulder. 8. A perusal of the statements of PW-2 Sarita Bala, PW-3 Om Piari and PW-4 Kartaro Devi when read in their entirety in view of the facts and circumstances of the case and on their correct appreciation, does not lend any support to the prosecution version that the accused treated the deceased with such mental as well as Physical cruelty which may constitute an offence under Section 498-A of the India Penal Code or which may amount to abetment of the commission of suicide by her. What in fact can be concluded on the basis of their statements is that the deceased was seriously opposed to the continuation of the accused serving in Dubai. This opposition was not only verbal and persuasive but was accompanied by acts intended to prevent his departure to Dubai, the place where he was serving and there by maintaining the deceased, his mother and sister. I have no hesitation what-so-ever in saying that the behaviour of the deceased in this regard was highly undesirable and unworthy of a reasonable human being. If on occasions of such opposition the accused had expressed his unhappiness and annoyance because of the situation created by the deceased which could cost him his job, he cannot be said to have treated the deceased with cruelty. If on occasions of such opposition the accused had expressed his unhappiness and annoyance because of the situation created by the deceased which could cost him his job, he cannot be said to have treated the deceased with cruelty. It was due to expression of his unhappiness and annoyance when the deceased threw away his passport and other documents, that she left her matrimonial house and had gone to the house of Kartaro Devi as explained of the accused. Apparently , the behaviour and conduct of the deceased herself was undesirable in this regard. As per the post mortem report Ext. PW-1/B, No injury what-so-ever was found on the dead-body of the deceased. Thus, there is nothing in the statements of PWs. Sarita Bala, Om Piari and Kartaro Devi which may lend any credibility to the version of the prosecution regarding the alleged cruelty. The learned Additional Sessions Judge, thus, has wrongly inferred the alleged cruelty from the statements of the aforesaid witnesses. On the contrary, what emerges from their statements is that the deceased was nicely treated in her matrimonial house but she was depressed because she was not conceiving and that she was being got treated by the accused. It also emerges from their statements that after consumption of the insecticide by the deceased, the accused had arranged for a doctor (private practitioner) for treatment of the deceased and also for a van. It is a different matter that she breathed her last before the arrival of the doctor. Thus, there is nothing incriminating against the accused in the statements of the aforesaid witnesses, rather exculpatory inferences and conclusions are deducible therefrom. 9. The statements of the other set of witnesses, namely, PW-5 Bal Krishan, PW-6 Neeraj Sharma, PW-11 Rakesh Kumar and PW-12 Ajay Sharma basically relied upon by the learned Additional Sessions Judge to convict the accused, are unnatural, contradictory of each other and incapable of any credence. PW-5 Bal Krishan has stated that on 10-6-1998 at 6.00 a.m. he received a telephonic call from the deceased informing him that the accused had married a woman in Dubai and had a child from the wedlock, she was being beaten by the accused, his mother and sister and would be killed by them on the same day. PW-5 Bal Krishan has stated that on 10-6-1998 at 6.00 a.m. he received a telephonic call from the deceased informing him that the accused had married a woman in Dubai and had a child from the wedlock, she was being beaten by the accused, his mother and sister and would be killed by them on the same day. Primarily, had the alleged information been correct, there was no occasion for the deceased to have returned on the same morning to her matrimonial house but in the ordinary course of human conduct she would have either stayed back the house of Kartaro Devi where she had gone or would have moved to a place of safety instead of going to a place where she was apprehending her murder. That the deceased was killed as per her apprehension, is not even the case of the prosecution. Had such an information been received by PW-5, instead of informing PW-11 Rakesh Kumar, brother-in-law of the deceased, he would have contacted the police or at lest the brother, sisters and mother of the deceased which he does not claim to have done. It is admitted by him that but for the above information, the deceased never complained to him of any ill-treatment/ beating by the accused or her mother-in-law and sister-in-law. Had he been a person in whom the deceased could repose confidence as he claims, and had she been treated with cruelty by the accused and his family members, she would have informed him earlier than 10-6-1998. He has stated that on being informed by him, PW-11 Rakesh Kumar immediately tried to contact the deceased by telephone at her house but the call was received by a police official who informed that Vandana had already been killed and he was informed accordingly by PW-11. This is, however, not the version of PW-11 Rakesh Kumar who has stated that on the evening of 10-6-1998 his brother-in-law (PW-12 Ajay Sharma) received a telephonic message from SSP. Dharamshala that Vandana had expired. It was on receipt of this information that PW-11 and others went to village Tang, i.e. the place where Vandana died. He has not stated about any information having been received either from PW-5 Bal Krishan or from the police official who according to PW-5, had received his call at the house of the deceased. Dharamshala that Vandana had expired. It was on receipt of this information that PW-11 and others went to village Tang, i.e. the place where Vandana died. He has not stated about any information having been received either from PW-5 Bal Krishan or from the police official who according to PW-5, had received his call at the house of the deceased. He had stated that after about 15 days of this marriage the deceased and the accused had come to his house and the accused at that time was drunk and they stayed in his house for 3-4 hours. He has further state that after 4-5 months Vandana again visited his house and told him that nobody cared for her and her husband frequently consumed liquor and gave her beatings. When the accused visited his house, he advised the accused, who was even at that time drunk, not to spoil his family and stop drinking but it resulted in further beating of the deceased, however, in his cross-examination he has stated that he had given such advice to the accused when he had come to his house after about 15 days of the marriage and, thus, he has contradicted what he has stated in the examination-in-chief. He claims to have been informed by his mother-in-law that his advice to the accused had resulted in more beatings. Here, again, he has contradicted his version as in his examination-in-chief that Vandana herself had telephonically informed him about it. Apart from these self-destroying statements, he had made material improvements in his statement under Section 161 of the Criminal Procedure Code Ext. DX about the alleged beatings. 10. PW-5 Neeraj Sharma has stated that within 10-15 days of her marriage with the accused, the deceased had complained to her that the accused used to beat her after consuming liquor and had also told that at a later stage she was told by the deceased that the accused used to beat her at he behest of his mother. In her cross-examination she has stated about more cruel act of the accused that is giving a kick to the deceased who was pregnant, resulting in abortion. A perusal of the statement of this witness in the Court and her statement under Section 161 of the Criminal Procedure Code Ext. PW-6/A reveals that she had not only made material improvements on her statement Ext. A perusal of the statement of this witness in the Court and her statement under Section 161 of the Criminal Procedure Code Ext. PW-6/A reveals that she had not only made material improvements on her statement Ext. PW-6/A but has also attempted to materially improve her version in the examination-in-chief when she was under cross-examination and there are material contradictions is these two statements. 11. PW-12 Ajay Sharma has stated that on her visit to his house Vandana had twice told him that the accused had been consuming liquor even at breakfast and on her protest he would compel her to prepare pegs for him and on her refusal would beat her with legs. The statement so made by him not only contain major and material improvements on his statements under Section 161 of the Criminal Procedure Code Ext. DX but is also at variance with such statement as also with the statements of other witnesses. In his initial statement Ext. DX his version is that the accused would not permit the deceased to speak with anyone and would not pay money to her nor would take her to the foreign Country. As and when she would request him to take her to foreign country, he would beat her and the accused, his mother and sister had maltreating, abusing and beating the deceased and had turned her out of their house about 15 days before her death. Neither it is his version in the statement made in the Court nor is supported by any other witness. 12. Section 498-A of the India Penal Code reads as follows: "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 form which may extend to three years and shall also be liable to fine. Explanation.- For the purposes 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." 13. To prove the head of charge under Section 498-A of the India Penal Code the prosecution in this case had to establish the "cruelty" as defined in clause (a) of Explanation to Section 498-A supra. Therefore, the prosecution to Sustain conviction under Section 498-A supra had to prove that the accused had committed act/conduct of such nature which was likely to drive the deceased to commit suicide or to cause grave injury or danger to her life, limb or mental or physical health. However, as already concluded heretofore, no such act or conduct on the part of the accused can even be inferred from the statements of PW-2, PW-3 and PW-4. The statements of PW-5, PW-6, PW-11 and PW-12 as discussed here-in-above, are unnatural and unworthy of any credence in view of the material contradictions, exaggerations and improvements as pointed out her-n-above. More over, there is material on the record produced by these witnesses in the form letters Exts. PW-11/A and PW-11/D addressed by the accused to his mother-in-law, Exts. PW-11/B and PW-11/C written by the deceased respectively to her brother (PW-12) and mother, and Exts. PW-12/A and PW-12/B written by the deceased to the accused which belie their version. There is nothing in these letters which may suggest that the conduct of the accused with the deceased was such which may amount to cruelty. It is though revealed by these letters that the accused used to take liquor and the deceased had been advising him not to take liquor. But from this cruelty cannot be inferred. Had the conduct of the accused been such which would amount to cruelty, the deceased would have complained about it at least to her brother. It is though revealed by these letters that the accused used to take liquor and the deceased had been advising him not to take liquor. But from this cruelty cannot be inferred. Had the conduct of the accused been such which would amount to cruelty, the deceased would have complained about it at least to her brother. She had no such complaint in her letters addressed by her to her brother and mother particularly in the letter Ext. PW-11/B which the deceased wrote to her brother (PW-12) in June 1998 almost immediately before she committed suicide. 14. In State of Punjab v. Gurdip singh and others, ((1996) 7 SCC 163), the Honble Supreme Court held as under: "7............Although the mother, the aunt and the cousin have stated about the demand of dowry and consequential ill-treatment meted out to the deceased Jyoti Bala, the letters written by Jyoti Bala to the mother and to the sister and also the letter written by the mother which have been exhibited in this case, do not indicate in any manner that Jyoti Bala had ever been taunted or humiliated on account of dowry demand. There is also no indication in the said letters that she had either been physically or mentally tortured in the house of the accused. The letter dated 27-7-1978 written by the deceased only indicates that she felt sad and was confused as to what should be done by her because her coming to the aunts house or the aunts visiting her ill-laws house were being objected by the accused and she solicited advice from her mother. The learned Judge in disposing of the appeal has referred to such letter and had indicated that had there been any case of maltreatment which could have induced her to commit suicide, there should have been some indication of such inducement in the letters. It appears to us that Jyoti Bala, quite young an yet to be seasoned with discord and unpleasantness in social intercourse and not yet gaining the practical wisdom and capability of adjustment against petulance and disharmony, became very sensitive and lost the normal frame of mind which might have induced her to end her life before it could fully blossom." 15. In this case also the statements of PW-2 Sarita Bala, PW-3 Om Piari an PW-4 Kartaro Devi, and the contents of the aforesaid letters clearly make it out that the deceased was properly maintained and nicely treated by the accused and his family members. However, it appears that she was obsessed by the craving that the accused should not go to Dubai where he was earning for his livelihood and thus not in a position to concede to her desire and was depressed with the thought that she was not conceiving which led her to take the extreme step of doing away with her life. 16. Section 306 of the Indian Penal Code reads 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, an shall also be liable to fine." 17. In view of the above provisions, to prove the head of charge under Section 306 of the Indian Penal Code against the accused it is not enough that the deceased committed suicide but the prosecution has to prove further that the accused aided and abetted the commission of suicide by the deceased. However, as seen above, there is no cogent and reliable evidence on the record to prove that the deceased by any act, omission or conduct on his part. On the contrary, the deceased appears to have become unreasonably sensitive about the accused not conceding to her wishes to stay back at home and not to go to Dubai to attend his job and about her not conceiving a child. 18. In view of the above discussion and conclusions, I hold that the prosecution has failed to prove the charge against the accused, therefore, the impugned conviction and sentence are not sustainable. 19. As a result, this appeal is allowed and the impugned conviction and sentence are set aside and the accused is acquitted of the charge against him. 20. The passport of the accused which was deposited in the Court of the learned Additional Sessions Judge (II), Kangra pursuant to the order dated 8-12-1998 passed in the bail application, be returned to him. 21. 20. The passport of the accused which was deposited in the Court of the learned Additional Sessions Judge (II), Kangra pursuant to the order dated 8-12-1998 passed in the bail application, be returned to him. 21. Before parting with the case, I would like to observe that the statements of the accused under Section 313 of the Criminal Procedure Code in this case have been recorded/dictated by the learned Additional Sessions Judge either in a highly negligent manner or he was not at all attentive to his job of recording such statements and had left the job to some official of his Court and signed them without application of mind, as is apparent from the fact that the questions put to the accused in his statement under Section 313 of the Criminal Procedure Code in this case have been recorded/dictated by the learned Additional Sections Judge either in a highly negligent manner or he was not at all attentive to his job of recording such statements and had left the job to some official of his Court and signed them without application of mind, as is apparent from the fact that the questions put to the accused in his statement under Section 313 of the Criminal Procedure Code are so formulated as if Ravinder Kumar (the accused) is a person other than the accused, and the questions put to Veena Kumari and Saroj Kumari (she had been (who had been acquitted by the trial Judge) in their statements under Section 313 of the Criminal Procedure Code have been so formulated and answers thereto have been so recorded as if they are accused Ravinder Singh. These lapses are not attributable to any clerical error but are outcome of gross negligence or dereliction of legal duty to dictate and sign such statements with due application of mind. In a sessions trial, the Sessions Court has to decide between life and death or liberty and incarceration of a person. Section 313 of the Criminal Procedure Code contains the provisions and the procedure based on the golden rule of natural justice that nobody should be condemned unheard, therefore, are required to be complied with meticulously. In a sessions trial, the Sessions Court has to decide between life and death or liberty and incarceration of a person. Section 313 of the Criminal Procedure Code contains the provisions and the procedure based on the golden rule of natural justice that nobody should be condemned unheard, therefore, are required to be complied with meticulously. The learned Additional Sessions Judge in this case has wholly departed from complying with the aforesaid provisions in a proper manner and had not even cared to apply his mind to the statements before authentication by putting his initials/signatures thereon. I am of the view that he owes at least an explanation for the lapses committed by him. In view of these observations, the matter be placed before the Honble Chief Justice for perusal, consideration and orders as may be deemed fit and proper.