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Himachal Pradesh High Court · body

2001 DIGILAW 306 (HP)

RAJESH KUMAR v. STATE OF H. P.

2001-10-29

M.R.VERMA

body2001
JUDGEMNT This appeal is directed against the judgment and order dated 20-12-1996 passed by the learned Sessions Judge, Una, whereby the appellants have been convicted under Sections 498-A/34, IPC and have been sentenced to undergo rigorous imprisonment for two years each and to pay a fine of Rs. 2000/- each and in default of payment of fine, to undergo further rigorous imprisonment for four months each. 2. The appellants along with Jagdish Ram and Ram Dulari (co-accused before the trial Court and hereafter referred to as such) were tried by the learned Sessions Judge, Una on a charge under Sections 304-B, 498-A and 306 read with Section 34, IPC. Case of the prosecution against them is that Neelam Kumari, daughter of Ram Kishan (PW-1) and Bimla Devi (PW-3) was married to appellant Rajesh Kumar on 26-1-1991 when she was aged 22 years. After about two months of the marriage, when Neelam came back to her parents house, she informed them that her husband Rajesh Kumar, her mother in law Pushpa Wati her Jethani Ram Dulari and her father in law Jagdish Ram used to himiliate her for bringing insufficient dowry. PW 1 advised appellant Rajesh Kumar not to maltreat his daughter and in turn he was assured that his daughter would not be maltreated in future. However, even thereafter, as and when Neelam came to her parents house, she complained about the maltreatement by the appellants and co-accused on the ground of bringing insufficient dowry. After about, one year of the marriage she was beaten up by appellant Rajesh Kumar and was left at her parents house. After about two or three days, he came back to take Neelam to his house but her parents refused to send her with him. When he apologised for his behaviour Neelam was sent with him. About 10 days before 21-12-1992, Neelam had again come to her parents house when she informed that the appellants and the co-accused who used to maltreat her for bringing insufficient dowry, had started maltreating her for not being able to give birth to a child. After staying in her parents house for three or four days, Neelam left for her in laws house with appellant Rajesh Kumar. On 21-12-1992, at about 6 p.m. , PW-1 came to know that his daughter Neelam Kumari was admitted in N.F.L. Hospital, Nangal. After staying in her parents house for three or four days, Neelam left for her in laws house with appellant Rajesh Kumar. On 21-12-1992, at about 6 p.m. , PW-1 came to know that his daughter Neelam Kumari was admitted in N.F.L. Hospital, Nangal. When he reached there, he came to know that Neelam Kumari had died. The doctors who had attended her opined in writing that there was smell of poison from the mouth of Neelam Kumari (hereinafter referred to as the deceased). The hospital authorities intimated the police vide report Ex.PG ASI Karnail Singh (PW-7) then went to N.F.L. Hospital, Nangal and recorded the statement of PW-1 (Ex. PA), on the basis of which FIR Ex. P- came into being at Police Station, Sadar, Una. PW-7 prepared inquest report Ex.PD and got the post mortem examination of the dead body of the deceased conducted from Dr. R.S. Soni (PW-8) and Dr. Anju Ahluwalia. The post mortem examination report is Ex.PB. The cause of death, however, was not specified in this report and was to be given after receipt of the report from the Chemical Examiner, to whom the viscera etc. was sent for examination. As per the report Ex.PL of the Central Forensic Science Laboratory, aluminum phosphide was detected, in the viscera. After receipt of this report, PW-8 and Dr. Anju Ahluwalia gave their opinion Ex. PM about the cause of death of the deceased. As per their opinion, the cause of death of the deceased was aluminum phosphide poisoning. On the basis of of the material collected during investigation, the officer in charge, Police Station, Una submitted a charge sheet under Section 304-B/34 IPC against the appellants and co-accused Jagdish Ram and Ram Dulari. The case came to be tried by the learned Sessions Judge, Una, who initially on 2-11-1995, framed a charge against them under Section 304-B/34, IPC. However, at a later stage on the application of the prosecution, two more heads of charge under Sections 498-A/34 and 306/34, IPC were also added. To prove the charge against the appellants and co-accused Jagdish Ram and Ram Dulari, the prosecution examined 10 witnesses. Statements of the appellants Jagdish Ram and Ram Dulari were recorded under Section 313, Cr.P.C. wherein they denied the prosecution case. To prove the charge against the appellants and co-accused Jagdish Ram and Ram Dulari, the prosecution examined 10 witnesses. Statements of the appellants Jagdish Ram and Ram Dulari were recorded under Section 313, Cr.P.C. wherein they denied the prosecution case. Appellant Rajesh Kumar further stated that after six months of the marriage when he went to his in laws house, his mother in law (PW-2) made inquiries from the deceased as to whether she had conceived. Thereafter, he got Neelam Kumari examined from Dr. Mrs. Chawla at Mehatpur/Nangal and she opined that the deceased was having Rasoli. The parents of the deceased then got the deceased examined from Dr. K.K. Singh at Nangal who opined that there was no Rasoli. In 1992, he and the deceased got themselves examined from Dr. Sahoti who opined that the deceased was perfectly all right but there was some defect in him. After birth of the second child of Hardev (brother of appellant Rajesh Kumar), the son was given in the lap of Neelam Kumari. Thereafter, he and the deceased went to his in laws house but they refused to accept the child and because of this, the deceased used to remain upset and disturbed. In defence , Dr. Kewal Krishan Puri (DW-1) and Dr. Mrs. N. Sahoti (DW-2) were examined. On appreciation of the material on record, the learned Sessions Judge found that the charge against Jagdish Ram and Ram Dulari was not proved and the heads of charge under Sections 304-B/34 and 306/34 IPC against the appellants were also not proved. Therefore, he acquitted them to the said charges. However, he found the appellants guilty of the commission of an offence punishable under Section 498-A read with Section 34, IPC and accordingly convicted and sentenced them as aforesaid . Hence the present appeal by them. 3. I had heard the learned counsel for the accused and the learned Assistant Advocate General for the respondent - State and have also gone through the records. 4. There is no dispute that the respondent State has not preferred any appeal against the acquittal of Jagdish Ram and Ram Dulari and the acquittal of the appellants for the offences under Sections 306/34 and 304-B/34 IPC. Thus, the order acquitting them of the aforesaid offences has become final. 4. There is no dispute that the respondent State has not preferred any appeal against the acquittal of Jagdish Ram and Ram Dulari and the acquittal of the appellants for the offences under Sections 306/34 and 304-B/34 IPC. Thus, the order acquitting them of the aforesaid offences has become final. It may also be pointed out here that there is no eye witness of any cruelty having been met to the deceased by the appellants. The prosecution version is based on what PW-1, PW-2 and PW-3 had learnt from the deceased from time to time. Thus the prosecution case is based on circumstantial evidence which has been disbelieved by the trial Court in so far as the charge against Jagdish Ram and Ram Dulari is concerned and had been accepted to convict the appellants. 5. It is well settled that in order to convict a person on circumstantial evidence, the circumstances relied upon must, at the first instance, be fully established and must be consistent only with the hypothesis of the guilt of the accused. Further, such circumstances should be of conclusive nature and tendency so as to exclude any reasonable ground for conclusion consistent with the innocence of the accused and must show show that in all human probability, the act must have been done by the accused. However, if two views, one favourable to the accused and another against him, are possible on the basis of the evidence adduced, then one favourable to the accused must be accepted. 6. In the case in hand, the evidence led by the prosecution is inconsistent and contradictory in character. As per the version in the FIR Ex.PH based on statement Ex. PA of PW-1, appellants and co-accused Jagdish Ram started maltreating the deceased after about two months of her marriage on the ground that dowry brought by her was not sufficient. Being aggrieved the deceased came to her parents house about a year before her death but after two or three days, appellant Rajesh Kumar came there and after assuring PW 1, took the deceased to her matrimonial house. Even thereafter, there had been Tu Tu Main Main between them on trifles. There is no other allegation of cruelty in the FIR. In his evidence, PW 1 had made material improvements in his statement Ex.PA. He has added Ram Dulari as one of the torments. Even thereafter, there had been Tu Tu Main Main between them on trifles. There is no other allegation of cruelty in the FIR. In his evidence, PW 1 had made material improvements in his statement Ex.PA. He has added Ram Dulari as one of the torments. He had come forward with the allegations that after one year of the marriage, his duaghter was beaten by appellant Rajesh Kumar and was left at his house and appellant Rajesh Kumar misbehaved with all the members of his family . However, after two or three days appellant Rajesh Kumar apologised and the deceased was sent with him to her matrimonial house. He has further claimed that 10 or 12 days before her death when deceased came to his house, she further complained that she was earlier maltreated for bringing insufficient dowry but now she was also maltreated for not being able to bear a child. Evidently, PW 1 has made material improvements in his statement by adding one more accused one more ground of maltreatment and even a case of beating. When confronted with his statement Ex. PA, he has no explanation to offer justifying these improvements. His evidence, therefore, is apparently inconsistent and unreliable. 7. PW 2, in his statement, has not named Jagdish Ram as the tormentor. Otherwise by and large, he supports the statement of PW 1. As per his examination in chief, he was informed of the maltreatment by the deceased as and when she came to their house. However, in his cross examination, he had stated that whatever he had stated in his examination in chief is based on information given to him by his mother (PW-3) and father (PW-1). Thus, he had not learnt anything about the alleged maltreatment of the deceased directly from her. His statement based on hearsay, therefore, is of no help to the prosecution. 8. PW 3 has by and large supported the version of PW 1. However, her statement also suffers from inconsistency as she had also made material improvements in her earlier statement Ex. DB. She had denied material parts of her statement Ex.DB and had come forward with such material allegations which are not therein. Her statements therefore, is rendered unreliable. 9. PW 3 has by and large supported the version of PW 1. However, her statement also suffers from inconsistency as she had also made material improvements in her earlier statement Ex. DB. She had denied material parts of her statement Ex.DB and had come forward with such material allegations which are not therein. Her statements therefore, is rendered unreliable. 9. It is implicit in the order acquitting Ram Dulari and Jagdish Ram that PW-1, PW-2 and PW-3 who had tried to falsely implicate them are not reliable and trustworthy witnesses and in this regard, even the trial Court has disbelieved them. 10. The case of the appellant is that the deceased had not conceived, therefore, appellant Rajesh Kumar and the deceased got themselves medically examined . It was found that the deceased was capable of conceiving a child whereas appellant Rajesh Kumar had very low sperms, a probable cause for not conceiving a child by the deceased. A male baby of the elder brother of appellant Rajesh Kumar was given in the lap of the deceased "but it was not acceptable to the parents of the deceased." Because of this, the deceased used to remain upset and disturbed. The learned trial Judge has disbelieved this version of the defence. However, in the facts and circumstances of the case, as they emerge from the material on record, this version cannot be held unbelievable or false. 11. The above defence had been put to the material witnesses as the first available opportunity. DW-1 and DW-2 have been examined to support and prove it. These witnesses are not shown interested in the appellants in any manner, therefore, their statements could not be brushed aside merely on the ground that proper record or medical examination and/or treatment of appellant Rajesh Kumar and the deceased was not maintained by them. It is a notorious fact that even in government institutions records are not meticulously maintained. From the statements of DW-1 and DW-2 read with Exs. D-1 to D-6, it is clear that appellant and deceased were medically examined and it was found that appellant examined Rajesh Kumar had low sperms and did not respond to the treatment. The suggestion concerning the defence version was not put to PW-1 and PW-3 in their cross examination and have claimed that they have no knowledge about it. D-1 to D-6, it is clear that appellant and deceased were medically examined and it was found that appellant examined Rajesh Kumar had low sperms and did not respond to the treatment. The suggestion concerning the defence version was not put to PW-1 and PW-3 in their cross examination and have claimed that they have no knowledge about it. Thus, they have not specifically denied the defence version regarding medical check up and treatment of the appellant Rajesh Kumar and the deceased. PW-2 has admitted in his cross-examination that he was informed by his parents that the deceased and appellant Rajesh Kumar had gone to Chandigarh for medical examination for not conceiving child by the deceased. Had PW-2 been not so informed, there was no question of his making this statement. Evidently, his parents (PW-1 and PW-2) by claiming want of knolwedge in this regard, had tried to conceal the fact of medical check up of the appellant Rajesh Kumar and the deceased. The defence version, therefore, seems to be probable. 12. It is admitted by PW-1, PW-2 and PW-3 that the deceased and appellant Rajesh Kumar used to visit their house almost once in a fortnight. Admittedly, there was no demand for dowry at the time of marriage. Appellant Rajesh Kumar had admittedly got electric fittings done in the house of his in laws through his workman immediately before the death of the deceased. These admitted facts also raise serious doubts about the alleged maltreatment of the deceased by the appellants. 13. In the ordinary course of human conduct, a man who has lost his wife will not claim to be incapable of procreation as has been done by appellant Rajesh Kumar in this case. This also lends credibility to the defence version. PW-3, in her statement Ex. DB, has referred to an offer by Ram Dulari to give her son or daughter in adoption to the deceased. Through at the trial she has denied having made such a statement but has no reason to assign as to how this version came to be recorded in the said statement. On the contrary, Karnail Singh (PW-7) claims to have recorded this statement as per the version of PW 3. This also suggests that the material witnesses have tried to conceal the true position. 14. On the contrary, Karnail Singh (PW-7) claims to have recorded this statement as per the version of PW 3. This also suggests that the material witnesses have tried to conceal the true position. 14. In view of the above discussion and reasons, the evidence led by the prosecution falls short of proving beyond reasonable doubt that the appellants had treated the deceased with cruelty. Therefore, their conviction under Section 498-A IPC cannot be sustained. 15. As a result, this appeal is allowed. The impugned conviction and sentence are set aside and the appellants are acquitted of the offence under Section 498-A, IPC. Fine, if recovered be returned to them. Appeal allowed.