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2005 DIGILAW 238 (HP)

SWARAN LAL v. STATE OF H. P.

2005-07-15

SURJIT SINGH

body2005
JUDGMENT Surjit Singh, J.—Appellants Swaran Lal, Ramesh Lal and Tripta Devi have preferred this appeal against the judgment dated 22.3.2005 of learned Additional Sessions Judge (Presiding Officer, Fast Track Court), Kangra at Dharamshala, whereby they have been convicted of offences under Sections 306 and 498-A of the Indian Penal Code and sentenced as follows:— Sr. No. Name of the Appellant Count on which convicted Sentence 1. Swaran Lal 306, IPC Five years rigorous imprisonment and fine of Rs. 1,000/-. In default of payment of fine simple imprisonment for six months. 498-A, IPC Three years rigorous imprisonment and fine of Rs. 1,000/-. In default of payment of fine simple imprisonment for six months. 2&3. Ramesh Lal & Tripta Devi 306, IPC Rigorous imprisonment for two years and fine of Rs. 1,000/- each. In default of payment of fine simple imprisonment for three months. 498-A, IPC Rigorous imprisonment for one year and fine of Rs. 500/-. In default of payment of fine simple imprisonment for one month. 2. First the prosecution version may be narrated. Deceased Sudesh Rani had been married to appellant Swaran Lal in the year 1991. After the marriage she started living at her in-laws place. When even two-three years after the marriage the deceased did not conceive, appellant Swaran Lal, her husband, started ill- treating her. Often he would give beatings to her and also harass her. Fed up with the ill-treatment and harassment at the hands of her husband, the deceased would often go to her parents place. Four-five months before her death (she died on 31st January, 1999), also she had gone to her fathers place and told her father that she was unable to bear the ill-treatment and torture any longer and so she had left her in-laws place and come to stay at his place. She also complained to her father Pal Chand that her husband, i.e. appellant Swaran Lal, taunted her that her parents had not given him a golden chain. She further told her father that her husbands brother and the wife of that brother, namely appellants Ramesh Lal and Tripta Devi, respectively, also taunted her that she had not brought sufficient dowry and also quarreled with her over petty things. She further told her father that her husbands brother and the wife of that brother, namely appellants Ramesh Lal and Tripta Devi, respectively, also taunted her that she had not brought sufficient dowry and also quarreled with her over petty things. When the deceased had been at his place for "two months on her last visit to her parental place, her father accompanied by Sarpanch Balkar Chand and some other respectable persons went to appellant Swaran Lal to settle the matter amicably. Swaran Lal apologized and next day he visited his in-laws place and took the deceased back to the matrimonial home. On 1st February, 1999 around 10.00, in the morning one Om Parkash, a cousin of appellant Swaran Lal went to the place of the father of the deceased and informed him that his daughter had died on the previous night. The father of the deceased then went to deceaseds in-laws place and saw the dead-body and lodged the report with the police in the form of statement, under Section 154 of the Code of Criminal Procedure, narrating therein the aforesaid facts. 3. Police conducted inquest. No external injury was noticed, as per inquest report. Dead-body was sent to the hospital for post mortem examination. The doctor who conducted the post mortem examination noticed two lacerated wounds, one on the right thigh (back side) and the second on the back side of the chest. The size of the wounds was 3x1x1 cm. Viscera was preserved. The opinion as to the cause of the death was reserved till the receipt of the report of the Chemical Examiner regarding viscera. Viscera was sent to the Chemical Examiner, who reported the presence of aluminum phosphate in it. On the basis of this report, the doctor gave the opinion that the deceased died of poisoning by aluminum phosphate. 4. In the course of the investigation of the case, the police recorded the statements of the father, the mother and two brothers of the deceased, besides the statements of the Sarpanches of two Panchayats and some respectable persons, who once intervened to get the misunderstanding/dispute between the deceased and appellant Swaran Lal resolved amicably. One writing purporting to be a compromise-deed was also taken into possession. 5. One writing purporting to be a compromise-deed was also taken into possession. 5. On the completion of the investigation, case under Sections 306 and 498-A of the Indian Penal Code was filed against all the three appellants, in the Court of the concerned Judicial Magistrate, who after complying with the requirement of Section 207 of the Code of Criminal Procedure committed the case to the Sessions Court. The case came to be tried by the Fast Track Court. On the conclusion of the trial, the appellants were convicted and sentenced, as aforesaid. 6. Grievance of the appellants is that the learned trial Court has not appreciated the evidence and the law correctly According to them the evidence on record does not establish the allegations regarding taunting of the deceased for her having not brought sufficient dowry or her ill-treatment, harassment or torture by the appellants. The learned Counsel representing the appellants urged that the evidence on record did not prove any of the ingredients of either of the two offences, the appellants were charged with. 7. I have heard the learned Counsel for the parties and perused the record. To bring the charge home to the appellants the prosecution examined thirteen witnesses, including the father of the deceased PW 1 Pal Chand, the mother of the deceased PW 2 Smt. Kaushalya Devi and two brothers of the deceased, namely Pritam Chand PW 5 and Kewal Krishan PW 6, besides examining a Pradhan of the Panchayat PW 3 Gurdas Man and Pradhan of another Gram Panchayat PW 4 Puran Chand, who got effected the compromise between Swaran Lai and his in-laws. Writing of the compromise, Ex. PW 3/A, has been proved by these latter named two witnesses. 8. PW 1 Pal Chand testified that deceased Sudesh Rani was married to appellant Swaran Lal in the year 1991 and when she did not bear any child for two-three years, her husband (appellant Swaran Lal) started mal-treating and harassing her and even gave her boatings twice or thrice and turned her out of his house and then the deceased came to his place and complained that the appellant had been pressurizing her to bring more dowry. He also stated that he asked the appellants twice or thrice, if they were interested in keeping his daughter at their place and at the same time tried to pacify his daughter. He also stated that he asked the appellants twice or thrice, if they were interested in keeping his daughter at their place and at the same time tried to pacify his daughter. He stated that the appellant had demanded a golden chain. Further he stated that on 31st or 1st day of some month of English calendar, the name of which he did not know, his daughter was killed by throttling or poisoning by the appellants. He further stated that once before her death, the deceased had been turned out of the matrimonial home and then she came to his house and thereafter he took a Panch and some respectable persons of the village to the house of the appellant Swaran Lal and had a talk with him and the appellant apologized and next day he visited his place and took the deceased back to his house and three months thereafter she died. He stated that on learning about the death of his daughter, he accompanied by his wife, his sons and other persons of the village went to the house of appellant Swaran Lal in village Beli Mahantan, where the police had already reached and he made a statement, Ex. PW I/A, to the police and put his thumb impression on the statement. He stated that the police prepared inquest report, on forms Ex. PW 1/B and PW 1/C and he and Parkash Chand signed those forms. 9. PW 2 Kaushalya Devi the mother of the deceased stated that the appellants had been ill-treating her daughter because of her having not given birth to a child and that appellant Swaran Lal used to demand a chain of gold. She stated that her daughter was given beating by the appellant Swaran Lal upon which she returned to her parental place and that after sometime a Panchayat was taken to the house of appellant Swaran Lal and the appellant then apologized and took the deceased to his house. She stated that the appellants continued to harass and ill-treat and give beating to her daughter, even after she gave birth to a child and they totally neglected her. She stated that on 31st January one Om Parkash informed that their daughter had died. 10. She stated that the appellants continued to harass and ill-treat and give beating to her daughter, even after she gave birth to a child and they totally neglected her. She stated that on 31st January one Om Parkash informed that their daughter had died. 10. PW 5 Pritam Chand a brother of the deceased who is employed in the Army, stated that the deceased who was married to appellant Swaran Lal, used to complain that her husband gave beatings to her and that the other two appellants also joined hands with her husband in beating her up. He stated that he was apprised of her complaints by his father at the place of his posting upon which he submitted applications, through his Commanding Officer to the department concerned, complaining about the conduct of the appellants. He produced Photostat copies of such applications which were marked Ex. PQ, Ex. PR and Ex. PS. He also stated that he submitted a copy of the compromise-deed Ex. PW 3/A to the police during the investigation of the case. 11. PW 6 another brother of the deceased stated that the deceased was initially treated well by her in-laws and that she used to visit them frequently but after sometime whenever she visited them, the appellants gave beating to her. He stated that reports were made to the police and the Panchayat. He also stated that on 1st February, 1999 they were informed by a relative of the appellant, that his sister had died. He stated that he alongwith his another sister went to the house of the appellants, where the dead-body of Sudesh Rani was lying. He stated that some vomited matter was lying on the spot, which the police took into possession vide memo Ex. PW 6/ A. He further stated that one sweater Ex. P-l of the deceased, on which also there was some vomited matters, had also been taken into possession, vide memo Ex. PW 6/A. 12. PW 3 Gurdas Man stated that he had got effected a compromise between the parties and a copy of that compromise is Ex. PW 3/A. He stated that there were some differences between the parties and through the compromise the same were got patched up. 13. PW 6/A. 12. PW 3 Gurdas Man stated that he had got effected a compromise between the parties and a copy of that compromise is Ex. PW 3/A. He stated that there were some differences between the parties and through the compromise the same were got patched up. 13. PW 4 Puran Chand, Pradhan of the Panchayat stated that PW 5 Pritam Chand had sent some complaints from the place of his posting and that he made inquiry into that complaint and also questioned appellant Swaran Lal, who admitted that he had committed a mistake and promised not to repeat the same and then a compromise was prepared, copy of which is Ex. PW 3/A. 14. PW 7 HHC Subhash Chand proved a copy of entry in daily-diary Ex. PW 7/A containing the report which was lodged at police post, Dhangupir, Police Station, Indora at 11.15 p.m. by HC Puran Chand. 15. PW 12 SI Parkash Chand stated that he received a telephonic call from Police Post, Dhangupir on 1.2.1999 and entered the contents of that call in the Rojnamcha, copy Ex. PW 12/A, and went to the spot alongwith a photographer and some police officials and on reaching the spot prepared the inquest report and sent the dead-body to the hospital for post mortem and also recorded the statement, under Section 154 of the Code of Criminal Procedure of Pal Chand, the father of the deceased. He stated that said statement was sent to the Police Station for the formal registration of the case. He further stated that he took into possession the vomited matter and the sweater of the deceased on which also there was some vomited matter and sealed the same into parcels. He further stated that the site plan Ex. PW 12/A was also prepared by him. 16. PW 13 Dr. Virender Gupta conducted the post mortem examination and issued the report Ex. PW 13/A. He stated that he received a written, application, Ex. PW 12/B, for conducting the post mortem and alongwith that application inquest papers Ex. PW 1/B had also been submitted to him. 17. PW 12/A was also prepared by him. 16. PW 13 Dr. Virender Gupta conducted the post mortem examination and issued the report Ex. PW 13/A. He stated that he received a written, application, Ex. PW 12/B, for conducting the post mortem and alongwith that application inquest papers Ex. PW 1/B had also been submitted to him. 17. Learned Counsel representing the appellants argued that investigation of the case had not been conducted in a fair and impartial manner and that a Head Constable, working at Police Post, Dhangupir, namely Puran Chand, who is closely related to the deceased has manipulated the investigation and has even got the record of the FIR changed. He argued that there had never been any demand for dowry and that it was established from prosecutions own evidence that the earliest version, given by the father of the deceased to the police contained no accusation regarding demand of dowry, but that version had been changed. He further argued that the story put forward by the father and the mother of the deceased that she (the deceased) was ill-treated or harassed, on account of her having not given birth to a child for two-three years after the marriage is belied by the facts and circumstances which are borne out from prosecutions own documents and other evidence. 18. Ex. PW I/A is the statement, under Section 154 of the Code of Criminal Procedure allegedly made by the father of the deceased. This statement purports to have been recorded at 4.15 p.m. by the Additional S.H.O., Police Station, Indora, who was camping at the spot i.e. in village Beli Mahantan. It is on the basis of this statement that formal First Information Report of the case, which is Ex. PW 12/A, had been registered. Learned Counsel for the appellants, by making reference to the statement of PW 1 Pal Chand, made in the course of examination-in-chief, that he reached the house of Swaran Lal alongwith Head Constable Puran Chand of Police Post, Dhangupir at 6.00 a.m. and that around 9 a.m., the S.H.O. from Police Station, Indora Sh. Om Parkash also reached there and immediately on arrival he recorded his statement, argued that Ex. Om Parkash also reached there and immediately on arrival he recorded his statement, argued that Ex. PW1 /A produced in the Court, as the statement, under Section 154 of the Code of Criminal Procedure, which purports to have been recorded at 4.10 p.m., is not the statement which Pal Chand made to Sub-Inspector Om Parkash. The prosecution did not examine Puran Chand of Police Post, Dhangupir. The defence examined him as DW 1. He denied that he reached the spot in the company of Pal Chand PW 1 on 1.2.1999 at 6.15 a.m., as testified by Pal Chand. He stated that how could he reach the spot at 6.15 a.m., when he had received the report (of the incident) at 7.15 a.m. No report received by this witness in his capacity as Investigating Officer of Police Post, Dhangupir, within the jurisdiction of which the crime was committeed at 7.15 a.m., has been proved on record. The witness is the husband of the sister of the mother of the deceased per deposition of PW 1 Pal Chand, he father of the deceased. 19. There appears to be a great deal of force in the defence plea that the earliest version has been changed and, therefore, Ex. PW I/A and the formal FIR Ex. PW 11/A, recorded on the basis of it, are not hit by the bar contained in Section 162 of the Code of Criminal Procedure. 20. In the inquest reports Ex. PW 1/B and Ex. PW 1/C as also the application Ex. PW 12/A, which was submitted to the doctor for conducting the post mortem examination, there is a reference to the statement made by Pal Chand about the incident. 20. In the inquest reports Ex. PW 1/B and Ex. PW 1/C as also the application Ex. PW 12/A, which was submitted to the doctor for conducting the post mortem examination, there is a reference to the statement made by Pal Chand about the incident. As per these documents what Pal Chand stated was that on account of the deceased having not born any child for two-three years, even after the marriage, her husband Swaran Lal, her husbands brother Ramesh Lal and Ramesh Lal s wife Tripta Devi (three appellants) started taunting her and even beating her and fed up with such taunts and ill-treatment the deceased would often go to her parents place and after sometime her father would call the elderly persons and take the deceased back to appellants house and leave her there and that about 4-5 months prior to her death also the deceased fed up with the beating, returned to her maternal home and when she had been there for about two months, he (Pal Chand), took the Sarpanch Balkar Chand and some other persons to the house of appellant Swaran Lal and the latter begged pardon and assured that in future he would not give beating to the deceased nor would he harass her and next day he (the appellant Swaran Lal) took the deceased to his house from her parental place. There is no reference of the alleged demand for golden chain or dowry or taunting of deceased for not bringing sufficient dowry in either of the two documents, i.e. the inquest report and the application for post-mortem examination, though from a perusal of both the documents, it appears that the summary of the incident recorded therein is based on the statement of Pal Chand, which supposedly means the statement, under Section 154 of the Code of Criminal Procedure. These two documents and the statement made by PW 1 Pal Chand, the father of the deceased that the S.H.O. reached the spot at 9.00 a.m. and soon thereafter he (the SHO) recorded his statement support the argument that the statement of Pal Chand, recorded initially under Section 154 of the Code of Criminal Procedure, has been replaced by Ex. PW I/A and, therefore, this statement is not admissible, in evidence, except for the purpose of contradiction, in view of the bar contained in Section 162 of the Code of Criminal Procedure. PW I/A and, therefore, this statement is not admissible, in evidence, except for the purpose of contradiction, in view of the bar contained in Section 162 of the Code of Criminal Procedure. Not only this, from this circumstance it can also legitimately be presumed that the accusation of demand for dowry and particularly the demand for a golden chain has been introduced after deliberations in Ex. PW I/A with a view to roping in the appellants for a more serious charge of abetment of suicide. 21. Above stated position apart, the testimony of PW 1 Pal Chand, the father of the deceased that appellant Swaran Lal used to give beatings to the deceased and pressurize her to bring dowry is not corroborated even by his wife Kaushalya Devi PW 2 and son Pritam Chand PW 5. Kaushalya Devi has nowhere stated that the deceased had ever complained that she was beaten up or harassed by the appellant Swaran Lal or the other appellants to force her or to pressurize her to bring dowry. What she has stated is that appellant Swaran Lal had demanded a chain of gold and she had told him that he would get one as and when some occasion was there. That means the demand was made from this witness and not the deceased. According to her the deceased used to be harassed and ill-treated because of her having not given birth to a child. 22. Pritam Chand PW 5, a brother of the deceased, has also nowhere stated that appellant Swaran Lal ever demanded any dowry or his sister ever complained that the appellant used to demand dowry. Even the second brother of the deceased, namely PW 6 Kewal Krishan does not say that the deceased used to be ill- treated or harassed for not bring sufficient dowry. According to him she used to be beaten up, whenever she wanted to visit her parental house. From his statement it appears that appellant Swaran Lal did not like the deceased visiting her parents too frequently. 23. The story that the appellants used to harass the deceased on account of her having not given birth to a child within two-three years of her marriage also appears to have been invented to provide for the motive for alleged cruelty. 23. The story that the appellants used to harass the deceased on account of her having not given birth to a child within two-three years of her marriage also appears to have been invented to provide for the motive for alleged cruelty. It has come in the testimony of PW 1 Pal Chand, the father of the deceased as also PW 2 Kaushalya Devi, the mother of the deceased that though the deceased did not bear any child during the first two-three years, later on she delivered a female child, which died after sometime and second time she delivered a male child, who is still alive and is with the appellants. The child, as per the testimony of Pal Chand and Kaushalya Devi, was about one year old, when the incident took place. Now when the deceased had started conceiving and bearing children two-three years after the marriage, which took place in the year 1991, the prosecution story that the deceased used to be ill-treated and even subjected to physical torture on account of her having not given birth to a child in the initial two-three years cannot be believed, being quite unnatural. When the incident had taken place the deceased had already given birth to two children and one child, i.e. a son, which is normally preferred to a female child, particularly in rural areas, was alive and was one year of age. No man who starts ill-treating his wife only for the reason that she does not bear children would continue with the ill-treatment even after the wife gives birth to a child and that too a male one. 24. However, this much stands established from the evidence on record that appellant Swaran Lal had been subjecting the deceased to cruelty of such a nature as was likely to cause injury to her health. There is unchallenged testimony of Pal Chand PW 1 the father and PW 2 Kaushalya Devi the mother of the deceased that the deceased used to be frequently turned out of the matrimonial home and that several times Panchayats were taken to the place of Swaran Lal to approach him to get the deceased back to the matrimonial home and to seek assurance from him that the deceased would no longer be ill-treated or subjected to cruelty. The prosecution has also proved on record, Ex. The prosecution has also proved on record, Ex. PW 3/A, a compromise-deed, which was executed between the parties in the presence of Sarpanch Gurdas Man PW 3 and several other persons, including PW 4 Puran Chand Sarpanch of another Panchayat. Appellant Swaran Lal does not deny the execution of this writing. 25. As per contents of the compromise deed, there had been some misunderstanding and differences between appellant Swaran Lal and his wife Sudesh Rani and the Panchayat got the same resolved. The deceased had been instructed and made to understand that it was not good on her part to hurl abuses and appellant Swaran Lal had also been instructed not to give beating to her. 26. PW 4 Puran Chand also a Sarpanch, perhaps of another Panchayat, testified that he had made inquiry with Swaran Lal when a complaint from a brother of the deceased was received by the Panchayat and Swaran Lal appellant admitted that he had committed a mistake and assured him not to commit any mistake, in future. The statement of this witness when read in conjunction with the contents of Ex. PW 3/A to the effect that appellant Swaran Lal had been instructed not to give beating to the deceased, proves that the appellant had been subjecting the deceased to cruelty by giving her beatings. 27. It is well settled that the proof "of the offence of subjecting a married woman to cruelty under Section 498-A of the Indian Penal Code, by itself does not establish the charge of abetment of suicide, under Section 306 of the Indian Penal Code. In this view of the matter, I am supported by the judgment of the Apex Court in the case of Ramesh Kumar v. State of Chhattisgarh [(2001) 9 SCC 618]. In this judgment it has been held that Sections 498-A and 306 of the Indian Penal Code are independent and constitute different offences. In this view of the matter, I am supported by the judgment of the Apex Court in the case of Ramesh Kumar v. State of Chhattisgarh [(2001) 9 SCC 618]. In this judgment it has been held that Sections 498-A and 306 of the Indian Penal Code are independent and constitute different offences. It has further been held that though, depending on the facts and circumstances of an individual case, subjecting a woman to cruelty may amount to an offence under Section 498-A and may also, if a course of conduct amounting to cruelty is established leaving no other option for the woman, except to commit suicide, amount to abetment to commit suicide, yet merely because an accused has been made liable to be punishable, under Section 498-A of the Indian Penal Code, he cannot be held guilty of having abetted the commission of suicide. 28. A man who had been subjecting his wife to cruelty by physically assaulting her or by any other means will not be held guilty of the offence of abetment to suicide if his wife commits suicide, unless any one of the three modes of abetment given in Section 107 of the Indian Penal Code is also established. The three modes are instigation to do certain thing, conspiring with other person for doing certain thing, an act or illegal omission or intentionally aiding, by any act or illegal omission, the doing of certain thing. In the present case, appellant Swaran Lal is not alleged to have engaged in any conspiracy with the deceased or anybody else for the commission of suicide by the deceased. He is also not alleged to have intentionally aided the commission of suicide by the deceased. The allegation is that he instigated the deceased to commit the suicide. Instigation means, goading, urging forward, provoking, inciting or encouraging to do certain thing. The Honble Supreme Court in Ratnesh Kumar v. State of Chhattisgarh [(2001) 9 SCC 618] has held that though it is not necessary that actual words may be used to satisfy the requirement of instigation to that effect or what constitutes instigation must necessarily and specifically be suggestive of the consequence, yet a reasonable certainty to incite the consequence must be capable of being spelt out from the evidence on record. 29. 29. In another case, i.e. State of West Bengal v. Orilal Jaiswal and another [(1994) 1 SCC 73] it has been held by the Honble Supreme Court that the Courts should be extremely careful in assessing the facts and the circumstances of each case and the evidence adduced in the trial Court 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. It has further been held that 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. 30. In Hans Raj v. State of Haryana [(2004) 12 SCC 257] it has been held that in addition to proving that the deceased was subjected to cruelty, it has also to be proved that the accused had in some way or the other aided or instigated the deceased to commit suicide or entered into any conspiracy or aided her in committing suicide, punishable under Section 306 of the Indian Penal Code, in addition to the charge of cruelty, under Section 498-A of the Indian Penal Code. 31. In the present case the parties belong to a low caste. They live in rural areas. They also appear to be not well educated and highly civilized. Among low caste people, living in rural areas, particularly those who are not educated and are not so highly civilized tempers run high over petty issues and in the heat of passion and out of frustration woman generally starts shouting and the men react by getting violent. 32. As a result of the above discussion it is held that though appellant Swaran Lal is not guilty of the charge of abetment to suicide, punishable under Section 306 of the Indian Penal Code, he is guilty of the charge of subjecting his wife to cruelty, punishable under Section 498-A of the Indian Penal Code. 32. As a result of the above discussion it is held that though appellant Swaran Lal is not guilty of the charge of abetment to suicide, punishable under Section 306 of the Indian Penal Code, he is guilty of the charge of subjecting his wife to cruelty, punishable under Section 498-A of the Indian Penal Code. As regards the other two appellants, there is no definite or specific evidence that they ever subjected the deceased to cruelty. In other words, they are not guilty of either of the two offences. 33. In view of the above discussion and findings, the appeal is partly accepted. The conviction and sentence of appellants Ramesh Lal and Tripta Devi for both the offences, i.e. under Section 306 and Section 498-A of the Indian Penal Code, are set aside and they are acquitted. The conviction and the sentence of the third appellant Swaran Lal, in respect of offence under Section 306 of the Indian Penal Code, is also set aside and he too is acquitted of the charge of committing the said offence. However, his conviction and sentence for the offence, under Section 498-A of the Indian Penal Code, are upheld and his appeal as against his conviction and sentence for the offence under Section 498-A of the Indian Penal Code, is dismissed. The appeal stands disposed of accordingly.