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Himachal Pradesh High Court · body

2009 DIGILAW 817 (HP)

STATE OF H. P. v. RAMESH KUMAR

2009-10-05

SURINDER SINGH, SURJIT SINGH

body2009
JUDGMENT Surjit Singh, J.(Oral)-State has appealed against the judgment dated 3th October, 1994 of learned Sessions Court, whereby respondent Ramesh Kumar, who was charged with and tried for offences, under Sections 498-A and 306 IPC, has been acquitted. 2. Prosecution case, as it emerges from the evidence on record, is like this. Deceased Kamlesh Kumari, a daughter of PW-4 Soma Devi, was married to the respondent in January, 1993. She consumed zinc phosphide, an insecticide, on 28.3.1993 around 8 a.m., at the house of the respondent in Haddi Mohalla, Kangra. She was rushed to the hospital at Kangra, immediately. Police was apprised of the admission of the deceased to the hospital, as a case of poisoning. PW 11 SI Mehar Singh of Police Station, Kangra, went to the hospital. After ascertaining from the doctor that the deceased was fit to make statement, he recorded her statement Ext. PE. As per this statement, respondent suspected fidelity of the deceased and used to force her to agree for divorce. He even used to give her beatings. On the night intervening 27th and 28th March, 1993 also, he gave beatings to the deceased. Next morning, after the deceased served tea to the respondent, his mother, his brother and also herself took a cup of it, he (the respondent) started pressurizing her to agree for divorce and threatened that he would not accept her as his wife. Fed up with the repeated accusation of infidelity, the deceased, per her statement Ext. PE, took the extreme step by consuming three portions of an insecticide, which she found in a box. On 29th March, 1993, the deceased died at 8.55 p.m. in Civil Hospital, Kangra, where she had been admitted on the previous day. Inquest was conducted by the police. Autopsy was conducted by PW-1 Dr. R.K. Verma. Viscera were sent to Chemical Examiner, whose report Ext. PB showed presence of zinc phosphide in the viscera. 3. Trial Court charged the respondent with offences, under Section 306 and 408-A IPC and tried him for the said offences, on his pleading not guilty. 4. PW-4 Soma Devi, mother of the deceased, stated that PW-6 Manna Devi had poisoned the ears of the respondent against the deceased by concocting a story that she was having illicit relations with a boy of her parental place, before marriage with the respondent. 4. PW-4 Soma Devi, mother of the deceased, stated that PW-6 Manna Devi had poisoned the ears of the respondent against the deceased by concocting a story that she was having illicit relations with a boy of her parental place, before marriage with the respondent. PW-6 Manna Devi was also arrested as a suspect but then she was made a witness. In the Court she denied having told the respondent that the deceased had been having a affair with a boy of the village, before marriage. She stated that respondent did enquire about the character of the deceased but she told him that she was a good girl. 5. PW-3 Binta Devi, a sister-in-law of the deceased, stated that once she had gone to the place of the respondent to get the deceased to her parental place, but the respondent started quarrelling with the deceased, saying that she had been having illicit relations with a boy of her parental place. 6. PW-7 Saran Dass and PW-5 Jamna Devi, from the village of the parents of the deceased, stated that once the mother of the deceased had called them to her place and that when they went there, the respondent and the deceased were already present and in their presence, PW-4 Soma Devi, mother of the deceased, told them that the deceased was subjected to cruelty by the respondent and when they asked the respondent cause of alleged cruelty, he stated that the deceased was not of good character. 7. Trial Court disbelieved the prosecution version and acquitted the respondent. 8. We have heard the learned Assistant Advocate General and gone through the record. Nobody has put in appearance for the respondent. 9. Prosecution mainly relied upon statement Ext. PE, allegedly made by the deceased, soon after her having been shifted to the hospital. The statement purports to have been recorded on 28.3.1993 at 8.45 a.m. in Haddi Mohalla, Kangra, where the respondent has his residence and not in the hospital. According to PW-11 SI Mehar Singh, application Ext. PC had been made by HC Kishan Chand for ascertaining if the deceased was fit to make statement and after the doctor certified, vide endorsement Ext. PC/1, that she was fit to make statement, he recorded statement Ext. PE. We find that the date, below the certificate Ext. PC/1, recorded by PW-2 Dr. Kumbh Karni, has been changed. PC had been made by HC Kishan Chand for ascertaining if the deceased was fit to make statement and after the doctor certified, vide endorsement Ext. PC/1, that she was fit to make statement, he recorded statement Ext. PE. We find that the date, below the certificate Ext. PC/1, recorded by PW-2 Dr. Kumbh Karni, has been changed. It appears that initially the date was written as 27.3.1993 or 29.3.1993, but after overwriting, it has been changed to 28.3.1993. 10. It is on the basis of statement Ext. PE, sought to be used as dying declaration, that FIR Ext. PF had been recorded. In the FIR also, we find some cuttings, with regard to the date on which it was lodged. Initially the date written was different from 28th. It was changed to 28th by overwriting. Also, we find in FIR Ext. PF, which is a carbon copy, mention of date 29th March, 1993 and the time as 8 a.m. This date and time is mentioned against the column pertaining to action taken in regard to the investigation of the case and if there be delay in lodging the FIR, the reasons therefor. At the same time, we find a signed note/endorsement at the end of the FIR to the effect that copies of the FIR are being sent to the concerned authorities. Date below this endorsement is 28th March, 1993. But the copy of the FIR Ext. PF reached the Sub Divisional Judicial Magistrate on 30th March, 2003 at 11 a.m. 11. Overwritings in the dates, as aforesaid, and reference to date 29th March, 1993, in one of the columns of the FIR, as noticed hereinabove, as also the fact that statement Ext. PE purports to have been recorded in Haddi Mohalla, Kangra, though PW-11 SI Mehar Singh stated that it was recorded in the hospital, create a serious doubt about the genuineness of Ext. PE as also the date and the timing of its recording. It is quite likely that Ext. PE was prepared after the death of the deceased and that is why the copy of the FIR did not reach the Magistrate on the purported date of its recording, i.e. 28th March, 1993, but on 30th March, 1993 at 11 a.m., after the death of the deceased. 12. There is another reason for suspecting the genuineness of Ext. PE. PE was prepared after the death of the deceased and that is why the copy of the FIR did not reach the Magistrate on the purported date of its recording, i.e. 28th March, 1993, but on 30th March, 1993 at 11 a.m., after the death of the deceased. 12. There is another reason for suspecting the genuineness of Ext. PE. According to PW-11 SI Mehar Singh this statement was recorded in the hospital, after the deceased was certified to be fit to make statement by PW-2 Dr. Kumbh Karni. However, the statement was not recorded in the presence of the said doctor nor is it attested by him. PW-11 SI Mehar Singh stated that the doctor was not present, when the statement was recorded. No plausible explanation has been offered by PW-11 SI Mehar Singh why the doctor or any Magistrate or a gazetted officer was not called for recording the statement of the deceased. 13. PW-6 Manna Devi denied that the deceased was having any affair with a boy of her parents’ village or that she had narrated a story of that kind to the respondent. Also, there is no evidence on record, indicating that the deceased was ever beaten up by the respondent. 14. In view of the above stated position, we see no merit in the appeal. The same is, therefore, dismissed.