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2005 DIGILAW 207 (HP)

KAMAL SINGH v. STATE OF H. P.

2005-06-24

M.R.VERMA

body2005
JUDGMENT M.R. Verma, J.—This appeal is directed against the judgment dated 1.4.2005 passed by the learned Sessions Judge, Chamba whereby the appellant/ accused (hereafter referred to as the accused) has been convicted under Sections 498-A and 304-B IPC and has been sentenced to rigorous imprisonment for two years and fine Rs. 5,000/- and in default of payment of fine to undergo simple imprisonment for six months under Section 498-A and rigorous imprisonment for seven years under Section 304-B IPC. 2. Case of the prosecution in brief is that Sunaina Kumari (since deceased) was married to the accused on 1.5.2002 at village Parihar. After about 1-1/2 months of the marriage the accused started ill treating the deceased physically as well as mentally by proclaiming that one Beena was better looking than her and also raised the demand for a washing machine. The deceased disclosed these facts to her parents and on 25.6.2002 and on the asking of PW-1 she narrated these facts in the presence of Beli Ram and Tilak Raj (PW-5) respectively Pradhan and Up-Pradhan of the Panchayat also. As advised by the said Pradhan and Up-Pradhan Gian Chand (PW-1) father of the deceased, along with his wife, Jagdish Chand and Rajinder Kumar (PW-2) went to the house of the accused to settle the matter. The accused confessed the accusations and begged for pardon and assured that he would not subject the deceased to cruelty. The parents of the accused also took the responsibility of ensuring that in future the deceased was not ill treated physically or mentally by the accused. On 4.8.2002 when PW-1 returned home after attending the Minjar fair at Chamba he came to know that his daughter, the deceased, had died. He want to the place of occurrence i.e. Nadunala where the police had already reached pursuant to the Rapat Roznamcha Ext.AD lodged by one Ramesh Kumar (DW-1) to the effect that the dead body of a woman was floating in Chamera Dam lake below Narunala. Statement Ext. PW-1/A of PW-1 was recorded by ASI Uttarn Chand under Section 154 Cr.P.C. on the basis of which F.I.R. Ext.PW-11/A came into being at Police Station, Khairi and investigation followed. On post-mortem examination of the deceased the concerned Medical Officer opined that the deceased died of the drowning leading to cardiac arrest vide post-mortem report Ext. PA. Statement Ext. PW-1/A of PW-1 was recorded by ASI Uttarn Chand under Section 154 Cr.P.C. on the basis of which F.I.R. Ext.PW-11/A came into being at Police Station, Khairi and investigation followed. On post-mortem examination of the deceased the concerned Medical Officer opined that the deceased died of the drowning leading to cardiac arrest vide post-mortem report Ext. PA. The ornaments which were found on the person of the deceased at the time of her post-mortem examination were taken in possession vide memo Ext.PW-4/A. A Gagar filled with water which the deceased is stated to have carried to the place of occurrence i.e. Narunala was taken in possession by the police from the spot vide memo PW-3/A. The photographs of the dead body and the spot were taken and are Exts. PW-1/A-l to A-10 and Mark AD-1 to AD-5. Rough site plan of the spot as prepared by the Investigation Officer is PW-13/ A. The viscera of the deceased which was preserved at the time of her medical examination was got chemically analyzed and as per report of the Assistant Director State Forensic Science Laboratory Ext.PW-13/A no alcohol or poison was found in the viscera. On completion of the investigation, a charge sheet was submitted by the officer incharge of Police Station, Khairi and as a consequence the accused came to be tried by the trial Court on a charge under Sections 498-A and 304-B IPC. 3. To prove the charge against the accused prosecution examined as many as 14 witnesses. Statement of the accused was recorded under Section 313 Cr.P.C. wherein he has denied the incriminating evidence and claimed that he did not maltreat or beat the deceased nor he had ever demanded any dowry and that she slipped into the dam and drowned. The accused led defence and examined Ramesh Kumar (DW-1) and Chiranji Lal (DW-2). 4. On appreciation of the material on record, the learned trial Judge found the accused guilty of the commission of aforesaid offences and accordingly convicted and sentenced him as aforesaid. Hence, this appeal. 5. I have heard the learned counsel for the accused and the learned Deputy Advocate General for the respondent/State and have also gone through the records. 6. 4. On appreciation of the material on record, the learned trial Judge found the accused guilty of the commission of aforesaid offences and accordingly convicted and sentenced him as aforesaid. Hence, this appeal. 5. I have heard the learned counsel for the accused and the learned Deputy Advocate General for the respondent/State and have also gone through the records. 6. It was contended by the learned counsel for the accused that there is no cogent, consistent and reliable evidence on the record to prove that the deceased was being treated with cruelty or there way any dowry demand which led her to commit suicide. It was further contended that the material on record particularly the statements of Dev Raj (PW-3), DW-1 and DW-2 reveal that it was a case of accidental death i.e. the deceased slipped, fell into the lake and drowned. It was also submitted that during investigation, the Investigation Officer had picked up and chosen the convenient witnesses but has failed to record the statements of such witnesses on the basis of whose version he claims to have concluded that the deceased was being treated with cruelty and it was the case of suicide as a consequence of such cruelty, therefore, according to the learned counsel for the accused, charge against the accused was not proved and the impugned conviction and sentence cannot be sustained. 7. On the other hand, it was contended by the learned Deputy Advocate General that the death of the deceased occurred within less than four months of the marriage and there is material on record that she was subjected by the accused to such cruelty including demand for dowry which led her to commit suicide, therefore, there is sufficient evidence on record to prove the charge against the accused beyond any reasonable doubt and he has, therefore, rightly been convicted and sentenced and the impugned conviction and sentence does not call for any interference. 8. It may be pointed out at the very outset that there is no dispute that the death of the deceased occurred because of drowning leading to cardiac arrest. The only dispute between the parties is whether the death occurred because of the suicide having been committed by the deceased being fed up with the cruelty met out to her by the accused or she slipped and fell into the lake and thus died of an accidental, death. 9. The only dispute between the parties is whether the death occurred because of the suicide having been committed by the deceased being fed up with the cruelty met out to her by the accused or she slipped and fell into the lake and thus died of an accidental, death. 9. To prove that the deceased committed suicide because of the cruelty met out to her by the accused, the prosecution relied on the statements of father of the deceased Gian Chand (PW-1), Rajinder Kumar (PW-2), Tilak Raj (PW-5) and Vidya Devi (PW-6). The statements of the aforesaid witnesses were recorded by the Investigation Officer during the course of investigation. However, it is pertinent to point out here that the initial part of the investigation was conducted by ASI Uttam Chand (PW-12). He has admitted that the information about the dead body of the deceased floating in the lake was given by Ramesh Kumar (DW-1) and thereafter he proceeded to the spot where many people including the accused were present. Thereafter he intimated S.H.O, Police Station, Khairi i.e. Inspector Kartar Chand (PW-13) and the parents of the deceased about the occurrence. They reached on the spot. When PW-1 reached on the spot his statement Ext.PW-1/A under Section 154 Cr.P.C. was recorded. It is also his version that he had not received any evidence qua beatings to the deceased by the accused. It is also admitted by him that Police Post Chouhra is nearby the house of the accused. There is no explanation as to why he did not record statements of the persons found present when he reached on the spot. 10. PW-13, who conducted the major part of the investigation, has admitted that the accused has two houses and at the relevant time the deceased was residing in the house nearby Police Post Chouhra at Village Brangal. It is also his admitted case that persons from Brangal, Chhbru and Dharohdi were present and were joined in the investigation and their statements under Section 161 Cr.P.C. were recorded, including those of Rajinder Singh, Dev Raj and Jagdish Chand. He admittedly joined the girl Beena, whom the accused allegedly wanted to marry and interrogated her but her statement under Section 161 Cr.P.C. was not recorded nor she was produced as a witness at the trial. He admittedly joined the girl Beena, whom the accused allegedly wanted to marry and interrogated her but her statement under Section 161 Cr.P.C. was not recorded nor she was produced as a witness at the trial. He further goes on to state that he collected the evidence from Chhabru and Dharodhi that the accused used to beat the deceased but qua this he had not recorded the statement under Section 161 Cr.P.C. of any of the witnesses from whom he collected such evidence. He claims to have made a mention of it in the ziminis. He claims to have further interrogated Ghindro Ram, Sheela Devi, Karam Chand and Meenakshi of village Brangal. However, he did not think it proper to record their statements under Section 161 Cr.P.C. It is pertinent to note that none of such persons from the said villages has been produced as a witness at the trial. He has further admitted that at the Police Post which is nearby the house of the accused where the deceased was residing at the relevant time no report about the cruelty etc. was made. He has no satisfactory explanation as to why he did not record the statements of such persons under Section 161 Cr.P.C. from whom he collected the evidence that the deceased was being treated with cruelty by the accused or why they were not cited and produced at the trial. He does not remember whether he had joined such persons in the investigation who supplied the information qua the dead body of the deceased and he was not prepared even to see case file/zimine to refresh his memory to make a clear statement on this count. This attitude coupled with the fact that he failed to record the statements of even the witnesses from whom he came to know that the deceased was treated with cruelty by the accused and all those persons who saw the dead body and gave information about it go to show that the investigation conducted by him was not fair and above board. 12. PW-1 has stated that after about 1-1/2 months of the marriage of the deceased the accused started ill treating her physically and mentally by telling her that one Beena who was working in the Balwari was better than her and also raised a demand for washing machine. 12. PW-1 has stated that after about 1-1/2 months of the marriage of the deceased the accused started ill treating her physically and mentally by telling her that one Beena who was working in the Balwari was better than her and also raised a demand for washing machine. When the deceased disclosed it to him he went to the Pradhan and Up-Pradhan (PW-5) of the area, brought them to his house and asked the deceased to narrate the facts in their presence and the deceased in their presence and in the presence of her mother disclosed about the demand of the accused for a washing machine and his intention to marry some other girl and also stated that in case the deceased disclosed it to anyone he would maltreat and tease her more. This disclosure was made by the deceased on 25.6.2002. The Pradhan and PW-5 advised PW-1 to go to the house of the accused with some respectable persons and advise the accused in the presence of his parents. It is also, however, his admitted case that on the morning of 25.6.2002 the accused had come to his house and in the evening after attending to some work somewhere else returned to his house. On the next day i.e. on 26.6.2002 left for his house along with the deceased. It is further in his evidence that on 27.6.2002 the deceased while accompanied by her mother-in-law gave a telephonic call to him requesting him to visit them and also told him that the accused was ill treating her. Thereafter PW-1, his wife, PW-2 and one Jagdish went to the house of the accused in village Chhabru. When the accused reached his house at 8 p.m., all sat together and inquiries were made from the accused as to why he was ill treating the deceased whereupon the accused replied that he had no liking for the deceased and was not interested to marry her and in fact he liked one Beena but he was forced by his parents to marry the deceased. PW-1 thereupon declared that he would not allow the deceased to reside in the house of the accused. However, father of the accused touched the feet of the deceased, therefore, one more opportunity was afforded to improve the relations. Accused also tendered apology and promised not to repeat his activities. PW-1 thereupon declared that he would not allow the deceased to reside in the house of the accused. However, father of the accused touched the feet of the deceased, therefore, one more opportunity was afforded to improve the relations. Accused also tendered apology and promised not to repeat his activities. The parents of the accused further took the responsibility to ensure that the deceased was tortured. 13. There are inherent improbabilities in the version given by this witness. Primarily when on 25.6.2002 the accused was also present in his house why the matter could not be discussed with the accused there and then and why without any murmur the deceased was allowed to go with the accused to her matrimonial house. In the ordinary course when the accused against whom the allegations of torture were leveled by the deceased was present in the house on the day when such allegations were made, and Pradhan and Up-Pradhan were called, in the normal course the matter could have been discussed with the accused there and then. However, failure to do so renders the version of PW-1 quite unnatural and unreliable. 14. The version regarding demand of the accused for a washing machine also does not seem to be natural for the simple reason that a washing machine would have been an article of comfort to the deceased and not to the accused. In the normal course if the accused wanted anything more in the dowry he could have asked for a T.V. or a motorcycle or scooter which could be of use to him. It is admitted case of PW-1 that before or at the marriage the accused or his parents did not raise any demand for dowry and whatever articles were given by him in dowry were given as per his free will. Had the accused any intention to get more dowry such a demand could have been raised before or at the time of the marriage. 15. PW-2 though by and large supports the aforesaid version of PW-1 but he claims that PW-1 had told him on 24.6.2002 that they would go to the house of the accused on 28.6.2002 and they did go to the house of the accused on 28.6.2002. 15. PW-2 though by and large supports the aforesaid version of PW-1 but he claims that PW-1 had told him on 24.6.2002 that they would go to the house of the accused on 28.6.2002 and they did go to the house of the accused on 28.6.2002. If the deceased revealed the alleged acts of cruelty on 25.6.2002 there was no occasion for PW-1 to ask PW-2 on 24.6.2002 to accompany him to the house of the accused. It may also be pointed out here that it is not the case of any of the witnesses that after 28.6.2002 they ever heard any complaint from the deceased about her ill treatment by the deceased. PW-5 in his statement supports the version of PW-1 regarding the facts constituting the cruelty met to the deceased by the accused on 25.6.2002 and that he and the Pradhan advised PW-1 to go to the house of the accused with two respectable persons of his community to settle the matter. According to him, non fulfillment of the demand of dowry was the cause of death of the deceased. It is admitted case of this witness that after 25.6.2002 he had not received any complaint about the maltreatment of the deceased. There is nothing in the statement of this witness which may explain the unnatural conduct of not discussing the matter with the accused who was admittedly present in the house of PW-1 in the morning as well as evening of 25.6.2002 and left along with his wife to his house on the next day without any rebuke or advise to the accused or resistance either from the parents or the deceased qua her accompany him to his house. 16. PW-6 seems to be quite an unnatural witness. She admittedly is not a near relation of the deceased. Her evidence is that she had come to take medicines from Chamoa when the deceased met her. According to her, the deceased was standing in her house and she (the witness) was present at the Bus Stop near the house of PW-1. On her asking deceased went to the Bus Stop and told her that the accused was demanding a washing machine and that he used to maltreat and ill treat her and was interested in marrying another girl named Beena. On her asking deceased went to the Bus Stop and told her that the accused was demanding a washing machine and that he used to maltreat and ill treat her and was interested in marrying another girl named Beena. In the cross examination, she admits that neither she disclosed the facts disclosed to her by deceased to her parents nor to anyone else. She was not in a position to state as to how many days before Minjar Fair the deceased met her. She was not in position to recollect as to how many days after the deceased died after the said conversation with the deceased. She came to know about the death of the deceased, therefore, she recollected whatever was stated to her by the deceased and the police met her on the road and she disclosed the facts to them. Evidently, a most unnatural version from an unbelievable witness. 17. PW-3 Dev Raj has stated that on 4.8.2002 at about 1.30-2 p.m. when accompanied by one Jagdish he was on way to his village Brangal via Naru Nala he heard the cries and they went down from the motor road and found a dead body of a lady which he and his companion took out of the water with the aid of a Danda. The said dead body was of the wife of the accused, therefore, he went to inform the accused but the accused was not present in his house. He has further stated that nearby the place of occurrence there is a water source and a Gagar was found lying there. Said Gagar was filled with water. However, he could not state as to who was the owner of the Gagar whereas as per the prosecution in his presence Gagar Ext.P-8 was identified by the accused as his Gagar. In his cross-examination, he has stated that one Chiranji Lal was sitting in the rain shelter and at that time the deceased was crying Bachao - Bachao. Thereafter they went to save her and by the time they reached on the spot the deceased had already drowned. He has further stated that he had always seen the accused and the deceased in happy mood prior to the incident. It is not in dispute that this witness was present on the spot. Thereafter they went to save her and by the time they reached on the spot the deceased had already drowned. He has further stated that he had always seen the accused and the deceased in happy mood prior to the incident. It is not in dispute that this witness was present on the spot. Despite his having been declared hostile for not making a statement as to who was the owner of the Gagar his evidence that he and other persons, including Chiranji Lal, on hearing the cries Bachao - Bachao had rushed down to the spot cannot be disbelieved. 18. PW-12 ASI Uttam Chand does not dispute the presence of Ramesh Kumar on the spot but admits that he had given the information at the Police Post about the dead boay floating in the lake. Said Ramesh Kumar has been examined as DW-1. He has stated that he heard the cries Bachao-Bachao of a lady on 4.8.2002 when Chiranji Lal was also present in the Rain Shelter. Said Chiranji Lal called one Anil Kumar (who was present on the spot even according to PW-3) and then they went to the dam and found a lady in the water of the dam. They pulled out the dead body with a piece of wood and it was that of the deceased. It is further in his evidence that he went to the Police Post and reported the matter there. He has further stated that the accused was working as a Teacher at village Bassa, therefore, he resides in that village which is 30-35 kilometres away from the place of occurrence. In his cross-examination he has reiterated that the cries of Bachao - Bachao were heard by them. 19. Chiranji Lal (DW-2) has stated that on 4.8.2002 at 1.30 p.m. he saw the deceased on way from her house to water source from where she used to fetch water and at that time she was playing with the Gagar. However, her foot slipped and she raised cries of Bachao - Bachao. He accompanied by Ramesh (DW-1), Dev Raj (PW-3), Jagdish and Anil proceeded to that place to save her but found that the deceased had drowned. With the aid of a stick they pulled her body out. He has further stated that the deceased and the accused had cordial relations. He accompanied by Ramesh (DW-1), Dev Raj (PW-3), Jagdish and Anil proceeded to that place to save her but found that the deceased had drowned. With the aid of a stick they pulled her body out. He has further stated that the deceased and the accused had cordial relations. It is further in his evidence that the accused was working as a Teacher at Bassa and was so working even at the relevant time and had his quarter at Bassa and used to visit village Brangal at the week end. He further states that he is ignorant that accused had relations with one Beena. He denied that the accused used to beat the daceased and used to raise demands for dowry. The prosecution has suggested to this witness in his cross examination that the accused was giving beatings to the deceased and was demanding dowry and thereafter killed her and threw her dead body in the lake. The suggestion which has been denied by the witness is contradictory of the prosecution version about the cause of the death of the deceased and in the absence of any explanation as to why and under what circumstances such a suggestion was put to the witnesses raises doubt about the correctness of the prosecution version. 20. PW-8 Ajit Singh has stated that he is a driver. On 4.8.2002 he had seen the deceased going towards dam site while having a Gagar. He returned back to the village in the evening and learnt that the deceased had died. In the cross-examination he has stated that he learnt in the village that the deceased was washing her feet, slipped and drowned in the dam and died. This part of his statement has not been called in question by the prosecution in any manner. 21. The Gagar which the deceased was found carrying to the Nala was found filled with water. Had the deceased made up her mind to commit suicide, it seems unnatural that before committing suicide she would have filled the Gagar with water. 22. This part of his statement has not been called in question by the prosecution in any manner. 21. The Gagar which the deceased was found carrying to the Nala was found filled with water. Had the deceased made up her mind to commit suicide, it seems unnatural that before committing suicide she would have filled the Gagar with water. 22. In view of the above discussion, it is clear that the evidence led by the prosecution is not cogent, consistent and reliable to prove that the deceased was treated with cruelty by the accused soon before her death, therefore, the presumptions under Sections 113-A and 113-B of the Evidence Act and Section 304-B IPC could not be drawn to presume that it is a case under Section 304-B IPC. 23. The above discussion leads me to the conclusion that the evidence led by the prosecution being not consistent, reliable and confidence inspiring, the charge against the accused is not proved beyond reasonable doubts. Therefore, the impugned conviction and sentence cannot be sustained. 24. 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. The accused, who is presently undergoing the term of imprisonment awarded to him by the trial Court, be set at liberty forthwith, if not required to be detained under any other process of law. Fine, if recovered, be refunded to him. Appeal allowed. -