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2010 DIGILAW 2735 (PNJ)

Ashwani Kumar v. State Of Haryana

2010-09-23

JITENDRA CHAUHAN

body2010
Judgment Jitendra Chauhan, J. 1. The appellant, namely, Ashwani Kumar, has come in appeal against the judgment and order dated 02.04.2002 (hereinafter as `impugned judgment) passed by the learned Additional Sessions, Judge, Sirsa (hereinafter as `trial Court), whereby he has been convicted for the commission of offence punishable under Section 306 IPC and sentenced to undergo rigorous imprisonment for a period of seven years and to pay a fine of Rs. 5,000/- and in default of payment of fine, to further undergo imprisonment for a period of six months. 2. Brief facts of the prosecution case, as narrated in para 1 of the impugned judgment, read as under :- "1. FIR was registered with Police Station City, Sirsa on 29.8.2000 at the instance of Jagdish, a resident of Hansi, who alleged foul play in the death of his daughter Kiran Bala. It is the prosecution story that she had been married to accused Ashwani Kumar about 4 = years prior to the occurrence. She was brought to General Hospital at Sirsa by the accused on 28.8.2000 at night in a burnt condition. An ASI of the police recorded her statement to the effect that she caught fire accidentally. On getting information, her father Jagdish along with his brother and son reached the hospital, Kiran Bala disclosed before them that the accused had returned home at 11.30 PM in a drunken condition and gave beatings to her with a wooden stick. He also threatened to kill her by burning. She then poured Kerosene on her body and put herself on fire. However, she succumbed to the injuries. Post-mortem examination was got conducted. Accused was arrested. After completion of investigation, challan was presented in the Court." 3. On completion of the investigation, the accused was charge-sheeted for commission of offence under Section 306 IPC to which he pleaded not guilty and claimed trial. 4. In order to substantiate its case against the accused, the prosecution examined as many as eight witnesses, namely, Dr. V. K. Mahipal, Medical Officer, General Officer, Sirsa, who medico-legally examined the deceased, as PW-1; Jagdish, complainant and father of the deceased, as PW-2; Sunder Sham, brother of the deceased, as PW-3; Om Parkash, uncle of the deceased, as PW-4; HC Madan Lal as PW-5; Dr. V. K. Mahipal, Medical Officer, General Officer, Sirsa, who medico-legally examined the deceased, as PW-1; Jagdish, complainant and father of the deceased, as PW-2; Sunder Sham, brother of the deceased, as PW-3; Om Parkash, uncle of the deceased, as PW-4; HC Madan Lal as PW-5; Dr. (Mrs.) Santosh Bishnoi, Medical Officer, General Hospital, Sirsa, who conducted post-mortem examination on the dead body of the deceased, as PW-6; SI Babu Lal as PW-7 and ASI Jagdish Chander, Investigating Officer, as PW-8. 5. The accused was examined under Section 313 Cr.P.C. in which all the incriminating circumstances appearing in the prosecution case were put to him to which the accused denied and pleaded false implication. No evidence was led by him in his defence. 6. After hearing learned counsel for both the parties and considering material/evidence on record, the learned trial Court has convicted and sentenced the appellants for the term indicated at the outset of this judgment. Aggrieved from the judgment of conviction and order of sentence, the present appeal is directed by the appellant which was admitted by this Court on 07.05.2002. 7. The learned counsel for the appellant has argued that as per the allegations of the prosecution, no offence under Section 306 IPC is made out in the instant case. 8. He has further argued that as per the first version recorded by ASI Jagdish Singh, PW-8, the deceased caught fire accidentally. After she was joined by her father-Jagdish, complainant, PW-2, along with his brother, the deceased made a statement that the accused had returned home at 11.30 PM in a drunken condition and gave beatings to her with a wooden stick and threatened to kill her by burning. On that, she poured kerosene oil on her body and put herself on fire. He has, thus, submitted that in view of the two different statements/dying declarations, the view taken by the learned trial Court cannot be sustained. 9. Learned counsel has further submitted that even if the case of the prosecution as projected is admitted, even then no case under Section 306 IPC is made out as nothing has come on record showing that the deceased was forced, compelled or pressurized by the accused-appellant to end her life by setting herself ablaze. 9. Learned counsel has further submitted that even if the case of the prosecution as projected is admitted, even then no case under Section 306 IPC is made out as nothing has come on record showing that the deceased was forced, compelled or pressurized by the accused-appellant to end her life by setting herself ablaze. He has contended that the deceased chose to take this extreme step with her own free will and the appellant cannot be fastened with the liability of inducing, compelling or pressurizing her thereto. 10. Learned counsel has next submitted that in the present case, it was the reaction of the deceased to the appellants reaching home late in the night in a drunken condition. The deceased-wife objected the same on account of which, beating was allegedly given to her and she was allegedly threatened to be killed by burning. On that, she set herself on fire after pouring kerosene oil on her person. 11. Learned counsel has submitted that the marriage in the instant case had taken place about 4 = years prior to the occurrence. The couple was blessed with two children, therefore, the deceasedwife must be accustomed to the habits of the accused-appellant and was mature enough to decide what was good and bad for herself and her family members, including the children. She was neither induced nor threatened by the accused to commit suicide. 12. Learned counsel has next argued that there are two dying declarations. The first dying declaration as recorded by ASI Jagdish Chander, PW-8, was made to the effect that her saree caught fire accidentally while cooking food on gas stove. Subsequently, when she was joined by her family members including the complainant-her father, she changed her earlier version and alleged that the appellant husband was responsible for her suicide, which cannot be taken into consideration. In this backdrop, he has submitted that subsequent improvement in the dying declaration itself proves the false implication of the accused- appellant. 13. In the end, learned counsel states that out of the substantive sentence of 7 years, the appellant has already undergone imprisonment of 2 years and 4 months. It is almost one-third of the total sentence. After the appellant was released on bail, he has been looking after the children and has not contracted second marriage. 14. 13. In the end, learned counsel states that out of the substantive sentence of 7 years, the appellant has already undergone imprisonment of 2 years and 4 months. It is almost one-third of the total sentence. After the appellant was released on bail, he has been looking after the children and has not contracted second marriage. 14. Learned counsel for the State has argued that the deceased has made a categoric statement that the accused came late in the night in a drunken condition and gave beatings and threatened the deceased to eliminate her. This fact alone is sufficient to conclude that the appellant dragged the deceased to end her life. 15. I have heard learned counsel for the parties and perused the record. 16. Admittedly, there are two different versions/dying declarations by the deceased. In the first dying declaration recorded by ASI Jagdish Chander, PW- 8, deceased has stated that she caught fire accidentally, whereas, in the second version, she has stated that the accused returned home at 11.30 PM in a drunken condition and gave beatings to her with a wooden stick and threatened to kill her by burning, thereafter, she poured kerosene oil on her person and set herself on fire. 17. The marriage in the instant case took place about 4= years prior to the occurrence. Out of the wedlock, two children were born which fact goes to establish that she was fully knowing the nature and habits of her husband. There is nothing on evidence except the solitary statement which has come in the second dying declaration that the accused threatened her to eliminate her by setting her on fire. 18. There is no history of matrimonial discord on record. In the circumstances, it cannot be said that the deceased was forced, compelled or pressurized to end her life. It was her own spontaneous reaction to the alleged remarks made by the accused. Keeping in view the age of the deceased and responsibility of raising two young children, it cannot be safely inferred that she was not mature enough to decide the welfare about herself and her family, particularly when there is nothing on record, except this solitary instance, that the husband used to threaten or pressurize her or induce her to commit suicide. In the circumstances, I am of the considered opinion that it was an immature reaction of the deceased to the alleged remarks made by the appellant when he was under the influence of liquor. Even the veracity of the alleged remarks is under cloud on account of the multiplicity of dying declarations. It has come on record that the husband and wife quarreled with each other on the previous night as the husband came late in a drunken condition. The Honble Supreme Court, in Sanjay v. State of Maharashtra, 2007(2) R.C.R. (Criminal) 678, in similar situation has observed as under :- "13. The prosecution version is that the subsequent dying declarations made by Seema alleging that she committed suicide because there used to be quarrels between her and her husband (the appellant) are corroborated by two letters alleged to have been written by Seema to her parents. The first letter (Ex. 28) appears to be dated 24.1.1994. It shows that her husband (the appellant) does not behave properly with her, he daily returns whom late at night in a drunken state and because of it there used to be quarrels between her and the appellant. She also expressed in the said letter that the appellant was also willing to give her divorce. Seema expressed that she felt repentful as she married the appellant of her own will. She further expressed that she felt no charm in leading such life. 14. Another letter (Ex.29) is dated 26.7.1994 i.e. about five months before the incident of suicide. The said letter reiterates the same state of affairs mentioned in the earlier letter (Ex.28). The evidence of PW--1 Vimal (the mother of Seema) and PW--2 Wamanrao (the father of Seema) corroborates the unhappiness faced by Seema. Hence it is alleged that the so called first written dying declaration (Ex.51) would not render the voluminous evidence untrustworthy. 16. In our opinion in view of the different dying declarations it would not be safe to uphold the conviction of the appellant and we have to give him the benefit of doubt. It cannot be said in this case that the prosecution has proved the appellants guilt under Section 306 I.P.C. of abetting the suicide beyond reasonable doubt." 19. Before proceeding further, it is considered appropriate to reproduce Section 306 IPC, which reads thus :- "306. Abetment of suicide. It cannot be said in this case that the prosecution has proved the appellants guilt under Section 306 I.P.C. of abetting the suicide beyond reasonable doubt." 19. Before proceeding further, it is considered appropriate to reproduce Section 306 IPC, which reads thus :- "306. Abetment of suicide. If any person commits suicide, whoever abets the commission of such suicide, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine." 20. On an application of the ingredients of Section 306 IPC ibid on the facts of the present case, no offence under this Section is made out. Similar question has been dealt with by this Court in Hari Singh v. State of Punjab, 1983(1) RCR (Criminal) 119, has held as under :- "The trial Court by believing Arjan Singh and Nasib Kaur that the appellant had asked his wife to take poison concluded that there had been instigation on his part for the commission of suicide by the wife. Furthermore, this fact was taken into consideration that the appellant did not care to come back to the house till the time of his arrest. I am of the view that the prosecution evidence brought on record is not sufficient for proving any investigation in the commission of the suicide by Surjit Kaur. Even if we disbelieve the version about the circumstances leading to the suicide to be wholly correct this conclusion can be reasonably reached that Surjit Kaur felt disgust, in living with such a husband who was having illicit relations with his own daughter-in-law. It is not known when arsenic was actually consumed by the deceased and as to how it was procured by her. Even if the appellant had said to his wife in anger that she could die by taking poison if she liked, it would not tantamount to any such instigation for the commission of suicide which could be capable. The taking of arsenic can be said to be an independent act of the deceased. It was not in any manner influenced by any kind of abetment made by the appellant. The beating about which Arjan Singh and Nasib Kaur gave evidence rather shows that Surjit Kaur was tired of her husband and wanted to end her own life. The taking of arsenic can be said to be an independent act of the deceased. It was not in any manner influenced by any kind of abetment made by the appellant. The beating about which Arjan Singh and Nasib Kaur gave evidence rather shows that Surjit Kaur was tired of her husband and wanted to end her own life. The beating alleged to have been administered cannot by any stretch of imagination be taken to be an act of abetment for the commission of suicide." 21. On appreciation of the entire evidence on record, it is overwhelmingly proved that it was the decision of the deceased alone to end her life. In the present set of facts, it cannot be said that the accused-appellant forced, compelled or pressurized the deceased to end her life particularly when no other incident of harassment or maltreatment is cited by the prosecution. 22. In view of the above discussion, the present appeal is allowed. The judgment and order passed by the learned trial Court is set aside. The appellant is stated to be on bail. His bail bonds shall stand discharged. 23. Since main appeal is decided by this judgment, therefore, the misc. applications pending, if any, shall also stand disposed of.