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Himachal Pradesh High Court · body

2007 DIGILAW 466 (HP)

STATE OF HIMACHAL PRADESH v. PAWAN KUMAR

2007-11-12

SURINDER SINGH, SURJIT SINGH

body2007
JUDGMENT Surjit Singh, J.—State has appealed against the judgment of the trial Court (Sessions Judge) whereby respondent Pawan Kumar, who i was tried for offences punishable under Sections 304-B and 498-A SPC, on the report of the Police, has been acquitted. 2. Prosecution case, as it emerges from the record, may be noticed first. Deceased Sanjiv Bala, a resident of Hoshiarpur was married to the respondent on 22.5.1987. Certain shares of HINDALCO Industries, Bombay, were purchased in the name of the deceased by her father in the years 1981 and 1982. Total number of the shares was 283. The said shares had been purchased with the intention that at the time of the marriage of the deceased, the same would be sold and the sale proceeds utilized to bear the expenses of her marriage. At the time of the marriage, the brother of the deceased, PW-3 Jai Gopal, received a part of the value of those shares from certain persons. However, signatures of the deceased on transfer papers were not obtained at that time. Her signatures were sought to be obtained in the month of August, 1987. The transfer papers were sent to PW-2 Krishan Kumar, the husband of a sister of the mother of the deceased, who lives in Shimla alongwith a letter wherein a request was made to the said Krishan Kumar that signatures of the deceased be obtained on those papers and thereafter the same be returned. PW-2 Krishan Kumar went to the house of deceased Sanjiv Bala in Middle Bazaar Shimla. The respondent was at home at that time. When PW-2 Krishan Kumar presented the papers to Sanjiv Bala and asked her to put her signatures thereon, the respondent declared that he had not been given proper dowry and that, therefore, the shares belonged to him and the deceased would not sign the papers for their transfer. Not only this, he threw the papers in rage. 3. In the month of October, 1987, there was festival of Karvachauth. The respondent and the deceased went to Hoshiarpur in connection with that festival, which was celebrated on 5th October, 1987. The respondent stayed there for a week or so and thereafter returned to Shimla, leaving the deceased at Hoshiarpur. Not only this, he threw the papers in rage. 3. In the month of October, 1987, there was festival of Karvachauth. The respondent and the deceased went to Hoshiarpur in connection with that festival, which was celebrated on 5th October, 1987. The respondent stayed there for a week or so and thereafter returned to Shimla, leaving the deceased at Hoshiarpur. When the respondent was still at Hoshiarpur, PW-3 Jai Gopal asked the deceased to sign the papers for transfer of the shares, but she told him that the respondent was opposed to her signing those papers and that she would not sign the same so long as the respondent was there and would do only after he left for Shimla. Thereafter, when the respondent returned to Shimla, the deceased signed the transfer papers. She returned to Shimla to join the respondents company after spending 1-1/2 month at her parents place at Hoshiarpur. 4. On 10th December, 1987, PW-1 Rakesh Kumar, a son of the sister of the mother of the deceased as also PW-2 Krishan Kumar, received a telephonic call at his working place in Shimla from the respondent that the deceased had died. The time was around 11.15 a.m. PW-1 Rakesh Kumar went to the house of the respondent and found that the deceased was lying dead on the central table in the room. He also noticed some blood under the table and some marks on her face and gathered the impression that the death was unnatural. He then went to his father PW-2 Krishan Kumar and discussed the matter with him. At 3 p.m., he alongwith some relatives, including PW-5 Kuldeep Kumar, a Municipal Councillor, went to the Police Station to lodge the report. The Police recorded his report, copy Ext.PW7/A, in the Daily Diary. PW-9 Sub-Inspector Madan Lai of Police Station, Sadar, where the aforesaid report was entered went to the spot. He got the scene photographed. He took into possession a bed-sheet, a pillow cover, a nose-pin, a shirt, a Salwar and a brassier of the deceased which were smeared with vomited matter, vide Memo. Ex. PW-l/A. He conducted inquest and prepared report Ex. PW-4/A. The dead-body was sent to the Indira Gandhi Medical College-cum-Hospital, for post-mortem examination. 5. PW-4 Dr. He got the scene photographed. He took into possession a bed-sheet, a pillow cover, a nose-pin, a shirt, a Salwar and a brassier of the deceased which were smeared with vomited matter, vide Memo. Ex. PW-l/A. He conducted inquest and prepared report Ex. PW-4/A. The dead-body was sent to the Indira Gandhi Medical College-cum-Hospital, for post-mortem examination. 5. PW-4 Dr. D.K. Ghosh conducted the post-mortem of the dead-body and recorded the following observations: "EXTERNAL APPEARANCE No. 1 female body of moderate build is about 25 years with wheatish complexion, length 157 cm. (five feet one inch). 1. Body had completely cooled down to the room temperature externally. 2. Hypostarys of purple colour was present over the back and the dependent portions. 3. Rigor mortis was found well developed and present all over the body. 4. No sign of external decomposition was seen. 5. Marks of dribbling of vomitus from both angles of mouth was present. 6. Presence of uniform wasting of muscles of both legs below knee joint was present and there was also evidence of contracture of ankle joints posterioly. LIST OF THE ANTE-MORTEM INTUR1J5S SEEN OVER THE BODY 1. There were presence of multiple contusions of reddish purple colour over cheeks, Chin of right side and upper part of neck just near midline. 2. Ante-mortem scratch abrasion on left mandibular ramus measuring 1.5 cm. long was present and was reddish brown in colour. 3. A contusion of the size 15 X 11 cm. was present over right deltoid region which was bluish purple in colour alongwith- a grazed abrasion with the cross pattern appearance 5 cm. below the tip of right shoulder with no evidence of scab formation. However, the colour was reddish brown. 4. There was presence of multiple abrasions in circular pattern as has been shown in diagram over right mammary area, inframammary area and lower chest showing dark brown scabs coming out easily on peeling. NOTE: There were presence of multiple small globular lesions (dermatitis) over left mammary area reddish in colour with few abraded spots. THORAX Vide column No. 3 larynx and trachea-found empty but contained few grain particles present at the glottic region. 4 & 5. Right lungs and left lungs respectively-no evidence of oedema, conjunction-with other signs of asphyxia were found. However, the tissues were kept for detailed histopathological examination. THORAX Vide column No. 3 larynx and trachea-found empty but contained few grain particles present at the glottic region. 4 & 5. Right lungs and left lungs respectively-no evidence of oedema, conjunction-with other signs of asphyxia were found. However, the tissues were kept for detailed histopathological examination. ABDOMEN Vide Column No. 2: Peritoneum-found to contain about 200 CC of serosanguinous fluid. Mouth, pharynx and esophagus-gums and teeth were found stained with vomitus. There was evidence of dental caries in the first molars on the right side both jaws. STOMACH AND ITS CONTENTS: Stomach was found to contain 100 CC of dark black colour fluid with few grain particles. However, there was no evidence of any peculiar smellor, evidence of congestion and hemorrhage. 5. SMALL INTESTINES AND THEIR CONTENTS:-AND No. 6 LARGE INTESTINES AND THEIR CONTENTS: - were found distended with gases of decomposition and contained faecal matter. 7. LIVER: NAD (However gall bladder was found distended with liquid bile-staining adjacent loops of intestines. 8, 9 and 10: SPLEEN, KIDNEYS AND BLADDER: NAD 11. organs of generation ________NAD. —No evidence of pregnancy found. Ovaries were found normal with presence of a serious cyst in left ovary. OPINION OF THE MEDICAL OFFICER. UNDER THIS COLUMN: Provisionally the opinion was kept pending till the receipt of chemical examiners and histopathological reports. PROBABLE TIME THAT ELAPSED: (a) between injury and death— (b) between death and post-mortem-24 to 36 hours. He preserved viscera in two jars. He also took sample of the blood from the dead-body and put it in a vial. The jars and the vial were sealed. One packet of preservative was also prepared and sealed. All these articles were sent to the Chemical Examiner for analysis and his report. The Chemical Examiner vide report Ex. PW-4/E opined that the viscera contained aluminum phosphide. On the receipt of the said report, the doctor gave opinion that the cause of death was aluminum phosphide poisoning. He opined that injuries No. 1 and 3, stated above, were not possible by self-infliction or by any disease. 6. On the completion of investigation, respondent was challaned in the Court of Judicial Magistrate concerned, who, after complying with the requirement of Section 207 of the Code of Civil Procedure, committed the case to the Sessions Court. He opined that injuries No. 1 and 3, stated above, were not possible by self-infliction or by any disease. 6. On the completion of investigation, respondent was challaned in the Court of Judicial Magistrate concerned, who, after complying with the requirement of Section 207 of the Code of Civil Procedure, committed the case to the Sessions Court. The respondent was charged with offences punishable under Sections 304-B and 498-A IPC by the Sessions Court and on his pleading not guilty was tried. On the conclusion of the trial, the Court returned the finding that he was not guilty of the charge framed against him and consequently acquitted him. 7. Reasons given by the trial Court are that no witness, including PW-1 Rakesh Kumar, the cousin of the deceased, PW-2 Krishan Kumar, the father of PW-1 and even PW-3 Jai Gopal, the brother of the deceased uttered even a word about the alleged harassment of the deceased by the respondent or his having treated her with cruelty and also possibility of the deceased having been forced by her brother PW-3 Jai Gopal to sign the transfer papers of shares and, on account of that her having gone in depression and ultimately committing suicide, could not be ruled out. 8. Learned Additional Advocate General representing the State argued that the reasons recorded by the trial Court are perverse and are not supported by the evidence on record. 9. Before we proceed to deal with the reasons furnished by the trial Court in support of its findings and the arguments advanced by the learned Additional Advocate General, as also the circumstantial evidence adduced by the prosecution, we may notice that the doctors opinion about the cause of the death, as given in the post-mortem report Ext.PW4/ J, which is based on the Chemical Examiners report Ext.PW4/E, was not challenged during the course of the cross-examination of the said doctor. The doctor stated that he preserved the viscera and sent the same to the Chemical Examiner and on receipt of his report Ext. PW, 4/E gave the opinion that the cause of death was poisoning by aluminum phosphide. It has come in evidence that the deceased had been vomiting for quite some time before she died and the vomited matter included blood. She had been vomiting so profusely and uncontrollably that the bed sheet Ext. P-l, pillow cover Ext. PW, 4/E gave the opinion that the cause of death was poisoning by aluminum phosphide. It has come in evidence that the deceased had been vomiting for quite some time before she died and the vomited matter included blood. She had been vomiting so profusely and uncontrollably that the bed sheet Ext. P-l, pillow cover Ext. P-2 as also the wearing apparels of the deceased, including her shirt Ext. P-4, Salwar Ext. P-4 and brassier got soiled with the vomited matter. Her wearing clothes were changed and the clothes besmeared with the vomited matter had been kept in a Chirtnichi. The fact is admitted even by the respondent in his statement, under Section 313 Cr.RC. per answer to question No. 19. Also, it stands proved that the dead-body had been lying on the central table and under that table there was a lot of vomited matter. Reference in this behalf may be made to the testimony of PW-1 Rakesh Kumar, PW-2 Krishan Kumar, PW-5 Kuldip Kumar, Municipal Counsellor and PW-9 S.I. Madan Lal. The fact that the dead-body was lying on the central table as also the fact that the bed sheet was soiled with the vomited matter, suggest that the deceased had been feeling extremely restless before she breathed her last. The accused being present in the house and also being the husband of the deceased was supposed to have immediately taken some steps to arrange for medical aid by calling some doctor to his place or by taking the deceased to some hospital; especially when the deceased was vomiting profusely and had the feeling of extreme restlessness. He, however, took no such steps. It was only after the poor lady had died that the respondent gave a telephonic call to PW-1 Rakesh Kumar, the cousin of the deceased, to inform him that she . was no more. The respondent has offered no explanation for his aforesaid unnatural conduct nor has he given any explanation for the poisoning of the deceased by aluminum phosphide. In his statement, under Section 313 Cr.P.C, he has simply expressed ignorance about the cause of death of the deceased, as opined by the doctor. was no more. The respondent has offered no explanation for his aforesaid unnatural conduct nor has he given any explanation for the poisoning of the deceased by aluminum phosphide. In his statement, under Section 313 Cr.P.C, he has simply expressed ignorance about the cause of death of the deceased, as opined by the doctor. When only the deceased and the accused were there in the house and the deceased started vomiting profusely, ultimately leading to her death and the cause of death is opined to be poisoning by aluminum phosphide, the respondent owed an explanation how did the deceased get poisoned and why did he not take any step for providing medical aid to her when she started vomiting and that too so badly that all her clothes and even the bedding got soiled with the vomited matter and she had been feeling extremely restless. His conduct in not arranging for her medical aid and also keeping tight lipped till she died, in the facts and the circumstances of the case, which we are going to discuss herein below, gives rise to a statutory presumption under Section 114 of the Indian Evidence Act, that either he himself administered the poison to the deceased or she took the poison to end her life on account of his having harassed her and having treated her with cruelty. 10. It stands proved beyond reasonable doubt that certain shares of Hindustan Aluminium Corporation Limited had been purchased in the name of the deceased about five-six years prior to her marriage with the respondent and that those shares were transferred in the names of different persons after her death, on the basis of transfer forms signed by her. These forms are Ext. P-10 dated 4th April, 1987, Ext. P-ll 1st September, 1987, Ext. P-12 dated 5th October, 1987, Ext. P-13 again dated 5th October, Ext. P-14 dated 3rd September, 1987, Ext. P-15 dated 11th December, 1987 and Ext. P-16 dated 2nd December, 1987. According to the testimony of PW-3 Jai Gopal, the brother of the deceased, the signatures of the deceased on these forms were obtained when she visited her parental house in Hoshiarpur in October, 1987, on the occasion of Karva Chouth festival and stayed there for about 1-1/2 months and that some of these forms were ante-dated and some back-dated. According to the testimony of PW-3 Jai Gopal, the brother of the deceased, the signatures of the deceased on these forms were obtained when she visited her parental house in Hoshiarpur in October, 1987, on the occasion of Karva Chouth festival and stayed there for about 1-1/2 months and that some of these forms were ante-dated and some back-dated. There should be no reason to disbelieve his testimony because the same has not been challenged. 11. The allegation against the respondent is that he was opposed to the transfer of the shares by the deceased and the realization of the value thereof by the parental side of the deceased, because he had the feeling that sufficient dowry was not given to him and the deceased at the time of the marriage and so the shares in the name of the deceased were to make up for that deficiency and he had the right to realize their value. PW-2 Krishan Kumar, the "Massar" of the deceased and PW- 3 Jai Gopal, the brother of the deceased were examined by the prosecution to prove the allegation. PW-2 Krishan Kumar testified that he received the transfer forms of the shares with a letter from the mother of the deceased, who is sister of his wife, for obtaining the signatures of the deceased thereon, in the month of August, 1987, and that when he went to the house of the deceased, the accused was also there and he opposed the signing of such forms by the deceased and even threw the forms, in rage, towards him. There does not appear to be any reason to disbelieve the testimony of the witness, especially when no motive is attributed to him in his cross-examination (by the respondent) for deposing against the respondent nor has the respondent said anything against him in his statement, under Section 313 Cr.P.C, even when specifically questioned as to why the witnesses had deposed against him. 12. 12. PW-3 Jai Gopal, the brother of the deceased, stated that when the deceased accompanied by the respondent came to Hoshiarpur on the occasion of Karva Chouth, he asked the deceased to sign the transfer forms of shares and then the respondent was still there, but she told him that the respondent was opposed to her signing such forms, thereby enabling him (her brother) or their parents to realize the value of those shares and that she would be signing those forms only after he (the respondent) left for Shimla. He further stated that it was only after the respondent returned to Shimla, leaving the deceased at Hoshiarpur that the latter signed the transfer forms of shares. We see no reason to disbelieve the testimony of this witness. 13. Learned Counsel for the respondent argued that from the testimony of PW-3 Jai Gopal himself it appeared that the shares had been sold even before the marriage of the deceased had taken place with the respondent, and if it were so, there could not have been any question of PW-2 Krishan Kumar or PW-3 Jai Gopal approaching the deceased for signing the transfer forms. The argument has been noticed only to be rejected. PW-3 Jai Gopal very categorically stated that though a part of the value of the shares had been received from the prospective purchasers, before the marriage of the deceased with the respondent, the formalities for transfer of shares in favour of the said vendees, including the signing of the transfer forms, had not been completed and that was why her signatures were sought to be obtained, after the marriage. It is in the background of this part of the statement of PW-3 Jai Gopal that his statement that some shares had been transferred and a part of the value realized, even before the marriage, is to be read and appreciated. 15. Testimony of PW-2 Krishan Kumar and PW-3 Jai Gopal, as discussed hereinabove, proves beyond reasonable doubt that the respondent was opposed to the signing of the transfer forms of shares by the deceased, thereby enabling her brother and mother to receive the value of the shares. 15. Testimony of PW-2 Krishan Kumar and PW-3 Jai Gopal, as discussed hereinabove, proves beyond reasonable doubt that the respondent was opposed to the signing of the transfer forms of shares by the deceased, thereby enabling her brother and mother to receive the value of the shares. PW-2 Krishan Kumar has stated that the respondent did not allow the deceased to sign the transfer forms and threw the same towards him in rage and said that he had not been given sufficient dowry and, therefore, the shares belonged to him to make up for the said deficiency. For the reasons stated hereinabove, this part of the testimony of the witness cannot also be disbelieved. 16. However, the aforesaid declaration by the respondent that he had not been given sufficient dowry and, therefore, he had the right to retain the shares does not constitute demand for dowry within the meaning of Section 304-B of the Indian Penal Code. Explanation-2 to sub section (1) of Section 304-B says that dowry for the purpose of the said sub-section (1) shall have the same meaning as in Section 2 of the Dowry Prohibition Act, 1961. In Section 2 of the Dowry Prohibition Act, 1961, dowry has been defined to mean— "any property or valuable security given or agreed to be given either directly or indirectly— (a) by one party to a marriage to the other party to the marriage; or (b) by the parents of either party to a marriage or by any other person, to either party to the marriage or to any other person; at or before or at any time after the marriage in connection with the marriage of the said parties." 16. Here, it is nobodys case that the shares, in question, were given or agreed to be given to the respondent by the deceased or were given or agreed to be given to the respondent or to the deceased by her parents. On the contrary, the evidence on record suggests that the respondent came to know even about the existence of such shares, in the name of the deceased, only when PW-2 Krishan Kumar came to his house to obtain the signatures of the deceased on transfer forms. Therefore, this cannot be said to be a case of dowry death within the meaning of Section 304-B of the Indian Penal Code. 17. Therefore, this cannot be said to be a case of dowry death within the meaning of Section 304-B of the Indian Penal Code. 17. There is unchallenged testimony of the brother of the deceased, namely PW-3 Jai Gopal, that the deceased returned to Shimla after spending 1-1/2 months at her parental house at Hoshiarpur where she had gone in connection with the Karva Chouth festival. It is quite natural that the deceased would have told the respondent about her having signed the transfer forms either voluntarily or on being asked by the respondent. There cannot be any direct or even indirect evidence qua what transpires between a husband and a wife and, therefore, only a presumption can be drawn keeping in view the entire gamut of the facts and the circumstances of a particular case. In the case in hand from the facts and circumstances discussed hereinabove, it can legitimately be presumed that the respondent came to know about the deceased having signed the transfer forms of shares on her return from Hoshiarpur. The deceased died as a result of poisoning by aluminum phosphide, within a few days of her return from Hoshiarpur. This fact when considered in the light of the presumption that the respondent came to know about the deceased having signed the forms for transfer of shares suggests that he must have started harassing and even subjecting the deceased to cruelty because he was not only opposed to the signing of such forms by the deceased, but even had the reeling, which he expressed to PW- 2 Krishan Kumar, that he had the right to get those shares, because of his having not been given sufficient dowry at the time of marriage. 18. It stands proved, beyond- reasonable doubt, per testimony of Dr. D.K. Ghosh (PW-4) that the deceased had four ante-mortem injuries on her person, which have been mentioned hereinabove and that out of those four injuries, at least two injuries, namely multiple contusions of reddish purple colour over both cheeks, chin of the right side and upper part of neck just near mid line and a contusion 15 x 11 cms. over right deltoid red bluish purple in colour alongwith a grazed abrasion (cross pattern) 5 cms. below the deep of the right shoulder with no scab formation, could not have been self inflicted. over right deltoid red bluish purple in colour alongwith a grazed abrasion (cross pattern) 5 cms. below the deep of the right shoulder with no scab formation, could not have been self inflicted. The testimony is suggestive of the fact that the deceased was inflicted atleast the aforesaid two injuries by a third person. Evidence on record shows that it was only the deceased and the respondent, who were there in the house on the fateful day and the preceding night and, therefore, in the absence of any explanation by the respondent, as to how the deceased received those injuries, it can legitimately be presumed that it was he who caused the injuries. 19. Cumulative effect of the above discussed evidence, the circum stances and the presumptions is that either the respondent administered the aluminum phosphide to the deceased forcibly or he harassed and subjected her to cruelty, so as to coerce her to take the extreme step. It may be stated here that the deceased had deformity of feet and a patient with such a deformity has difficulty in walking straight, per deposition of PW-4 Dr. D.K. Ghosh. Therefore, the possibility that the aluminum phosphide was administered forcibly can also not be ruled out, especially when there is evidence of use of criminal force and violence against the deceased. However, the respondent was not charged with the offence of murder. Otherwise also, when two inferences can be drawn from the facts and the circumstances of a case, the one which is favourable to the accused can only be drawn. Therefore, we hold, in view of the above discussed evidence, circumstances and presumptions, that the respondent-accused abetted the commission of suicide by the deceased, besides subjecting her to cruelty and thereby committed offences punishable under Sections 306 and 498-A of the Indian Penal Code. It is true that) the respondent had not been charged with the offence under Section 306 I.P.C. and was charged only with offences under Sections 304-B and 498-A I.P.C. but he cannot be said to have been prejudiced in the matter of his conviction for offence under Section 306 I.P.C. on account/ of his having not been charged with such offence. The reason is that the charge included the allegation that he subjected the deceased to cruelty, though that is a different matter that the charge further stated that the cruelty was in connection with the demand for dowry. It is only the second part of the charge which has not been proved. The respondent was aware of the first part of the charge also viz. he subjected the deceased to harassment and cruelty. It is this harassment and cruelty, which has been found to amount to the abetment of commission of suicide by the deceased. 20. It may be stated that the offence of abetment to the commission of suicide, under Section 306 I.P.C. is a lesser offence as compared to the offence of dowry death, under Section 304-B I.P.C, because while the offence under Section 306 IPC is punishable with imprisonment which may extend to ten years, the offence under Section 304-B IPC is punishable with imprisonment which may extend to imprisonment for life. 21. Respondent having been held guilty of the offences, under Sections 306 and 498-A IPC, hereinabove, is convicted of the said offences. He be produced on 29th November, 2007 in person, for being heard on the question of quantum of sentence. Appeal allowed.