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2011 DIGILAW 1568 (HP)

Jiwan Singh v. State of H. P.

2011-03-21

SURINDER SINGH

body2011
JUDGMENT : Surinder Singh, J, Appellant, alongwith his family members namely Shiv Chand father, Smt. Sheela Devi mother and Vidya Devi sister-in-law, was put on trial for the offences punishable under Sections 498-A and 306 of the Indian Penal Code. When the matter was pending trial, Shiv Chand accused had died. Other accused except the appellant were acquitted, whereas, the appellant was convicted for the offences punishable under Section 498-A of the Indian Penal Code and sentenced to undergo simple imprisonment for a period of three years and to pay a fine of `5,000/-and also under Section 306 of the Indian Penal Code to undergo simple imprisonment for a period of seven years and to pay a fine of `10,000/- with default clauses. Feeling aggrieved by the impugned judgment of conviction and sentence, the appellant directed the present appeal. 2. Admitted facts of the case are that Smt. Rajni daughter of PW1 Kaman Singh and PW2 Smt. Bhagmani was married to the appellant in the year 1994. During this marriage, she gave birth to a male child. It is alleged that she was subjected to the cruelty and harassment with a view to coerce her to meet unlawful demands for property by the appellant and his family members. (ii) On 18.7.1997, at about 10.15 p.m., in her matrimonial village, Smt. Rajni took poison. Immediately she was removed by the appellant and his father Shiv Chand to the CHC Kotgarh, from where she was referred to I.G.M.C., Shimla. Though the doctors had tried to save her, but in vain, ultimately she expired on 19.7.1997 around 8.45 p.m. Accused Shiv Chand father of the appellant lodged a Rapat No.14 on the same day, which culminated into the FIR under Section 309 of the Indian Penal Code. (iii) The parents of the deceased were informed by some relative. They reached Shimla, where the dead-body of their daughter was lying in the hospital. The police had already arrived there. The postmortem of the dead body was performed on 21.7.1997 at 11.45 a.m. by PW3 Dr. H.S. Sekhon. In the opinion of the doctor, there was no evidence of ante-mortem external injuries however there were postmortem needle marks over the region of heart. (iv) The viscera was preserved and sent for the forensic examination. Larynx and trachea were full of froth. H.S. Sekhon. In the opinion of the doctor, there was no evidence of ante-mortem external injuries however there were postmortem needle marks over the region of heart. (iv) The viscera was preserved and sent for the forensic examination. Larynx and trachea were full of froth. After receiving the report of the analysis, doctor gave final opinion that the death of Smt. Rajni was due to asphyxia i.e. due to consumption of aluminium phosphide poisoning. His opinion is Ex.PW3/B and postmortem report is Ex.PW3/A. the dead-body was handed over to the appellant. (v) The enquiry and investigation record prior to 2.10.1997 was lost and Inspector Joginder Singh faced departmental enquiry. He was held guilty as such imposed penalty of stoppage of two increments with cumulative effect. 3. On 2.10.1997, PW1 Kaman Singh lodged another FIR against the appellant and his family members alleging that after 3-4 days of her marriage, the appellant started beating Rajni Devi aforesaid and after about four months, she came to the parental house and complained that the appellant used to take liquor and beat her and declined to go back to join the company of the appellant. After about 15 days, appellant came to his house alongwith one Partap Thakur and apologized. Thereafter he sent the deceased with him. After about one year, he got the telephonic message that the appellant had resorted to the same rut again. Thereafter, he alongwith his wife and relative Prem Singh went to the village of the appellant and enquired about the complaint made by his daughter. Again he apologized. He further alleged that few months before her committing suicide, she was given beatings and fell unconscious. Lastly, the appellant had pledged her jewellery for `8500/- at Shimla. PW1 aforesaid took loan of `7000/- from Gian Chand his brother-in-law and paid to Rajni and told her that `1500/- would be given later on, but Rajni returned this amount after few days. It is alleged that on 19.7.1997, he got a message from his nephew that Rajni was serious and hospitalized at Shimla, but the appellant did not inform them. When he reached IGMC, Shimla, she was dead. It was also alleged that the family members of the appellant did not intervene and rendered help to the deceased. On these allegations, the police lodged the FIR Ex.PW7/B and started investigation. 4. When he reached IGMC, Shimla, she was dead. It was also alleged that the family members of the appellant did not intervene and rendered help to the deceased. On these allegations, the police lodged the FIR Ex.PW7/B and started investigation. 4. As stated above, the original investigation file was stated to be lost in transit by Inspector/ SHO Joginder Singh, thus no record of inquiry and investigation was available prior to the date 2.10.1997 and the challan was prepared against the appellant and his family members on duplicate documents under the aforesaid sections, for their trial. Except the appellant, as aforesaid, others were acquitted. 5. Shri Anup Chitkara, learned counsel for the appellant vehemently argued that admittedly, the deceased was married to the appellant in the year 1994 and was died within seven years of her marriage by consuming poison, but the mere fact of suicide by her would not automatically give rise to the legal presumption that the appellant had abetted the suicide. He further ventilated that the prosecution has failed to prove that the appellant had raised any demand of dowry or he had ill-treated or mal-treated the deceased in any manner. It is also argued that the evidence regarding dowry and harassment by itself would not constitute the cruelty within Explanation (b) of Section 498-A of the Indian Penal Code unless there is cogent evidence that the deceased was being tortured or mal-treated for not meeting such demands. He also took me through the evidence on record and ventilated that the deceased was not keeping mentally fit and due to mental ailment, she was fed-up from her life and might have taken the extreme step to finish her life. 6. On the other hand, Shri A.K. Bansal, learned Additional Advocate General supported the impugned judgment of conviction and sentence. 7. I have thoughtfully considered the respective contentions of the parties and have closely and cautiously scanned the evidence on record. 8. Undisputedly, the deceased had died due to consumption of poison within seven years of her marriage. 6. On the other hand, Shri A.K. Bansal, learned Additional Advocate General supported the impugned judgment of conviction and sentence. 7. I have thoughtfully considered the respective contentions of the parties and have closely and cautiously scanned the evidence on record. 8. Undisputedly, the deceased had died due to consumption of poison within seven years of her marriage. Parents and relatives of the deceased alleged following three instances of cruelty:- (i) According to parents (PW1 Kaman Singh, PW2 Bhagmani) and PW9 Smt. Chanda Negi, her relative and friend, deceased Rajni had visited the parental house in 1995 and informed her parents that the appellant had been given to the vice of liquor and had been indulging in gambling and she refused to return to her matrimonial house. (ii) The jewellery of the deceased was pledged by the appellant for an amount of `8500/- at Shimla and her father PW1 aforesaid took loan and paid `7000/- to his daughter with assurance to pay remaining amount after few days, but when it was not paid, her daughter informed him telephonically to make the payment. (iii) PW15 Smt. Sheela Devi stated that in the month of April, 1997 she alongwith her husband PW16 Ravi Chander came in connection with the engagement of one Raj Kumar and stayed with the appellant and his family for two days. Appellant slapped his son and also his wife and his wife also pushed him in their presence. In that consequence, she fell down and became unconscious. 9. In prosecution evidence, PW1 Kaman Singh stated that deceased Rajni visited him in the year 1995 and informed him that her husband had treated her with cruelty and become a liquor addict and indulged in gambling, but after about 15 days, Jiwan Singh appellant came alongwith Partap Thakur and apologized. He persuaded the accused to return to the matrimonial house. Partap Thakur was not examined to substantiate this version and PW1 aforesaid, was confronted with his statement recorded under Section 161 Cr.P.C. on 2.10.1997 and this fact did not find mentioned therein. PW2 Smt. Bhagmani his wife, also made similar statement, but when confronted with her statement recorded under Section 161 Cr.P.C. even her statement did not make any reference to this effect. Further, PW9 Smt. Chanda Negi in cross-examination stated that the appellant had taken his wife to Shimla where she delivered the child by caesarian. PW2 Smt. Bhagmani his wife, also made similar statement, but when confronted with her statement recorded under Section 161 Cr.P.C. even her statement did not make any reference to this effect. Further, PW9 Smt. Chanda Negi in cross-examination stated that the appellant had taken his wife to Shimla where she delivered the child by caesarian. She denied that in the month of March, 1995 Rajni was taken to Sarahan by her parents when she became serious. This omission in their statements is serious and their version before the Court for the first time to open to criticism in absence of cogent explanation. 10. Further the parents of the deceased are stated to have paid an amount of `7,000/-to the deceased for the release of the jewelry pledged by the appellant, but even this amount was admittedly returned by her after sometime. When the amount was returned and there is no evidence with respect to pledging of the ornaments with someone at Shimla, as alleged then this circumstance also looses its importance, more particularly that pledging of the ornaments of the deceased was actuated with some ulterior motive. 11. The third instance about beating the child and also the deceased. PW15 Smt. Sheela Devi in her cross-examination stated that the appellant had asked his wife as to why she had beaten the child and on this account, the appellant gave a slap to her to save the minor child, without using any sort of abusive language to her. The parents of the appellant did not intervene. Thereafter deceased was brought inside the room and given water by her family members. 12. Whereas, PW16 Ravi Chander was not aware of the relation between the appellant and his wife as he met them for the first time with his wife (PW15) and stayed there. He stated that the deceased did not complain him about anything during their stay. He also stated that the appellant had slapped his wife to save the minor child. 13. On the scrutiny of the above referred circumstances, I do not consider it that it satisfies the definition of cruelty, as defined under Section 498-A of the Indian Penal Code. He stated that the deceased did not complain him about anything during their stay. He also stated that the appellant had slapped his wife to save the minor child. 13. On the scrutiny of the above referred circumstances, I do not consider it that it satisfies the definition of cruelty, as defined under Section 498-A of the Indian Penal Code. The reliance placed by the learned Additional Advocate General to Section 113-A of the Indian Evidence Act, which provides that if any person commits suicide, whoever abets the commission of such suicide, is liable to be punished under Section 306 of the Indian Penal Code is also misplaced. Because, Section 107 of IPC lays down the ingredients of abetment, which include the instigation of any person to do that thing or engaging one or more persons in any conspiracy for the doing of that thing, if an act or illegal omission takes place in pursuance of that conspiracy and in order to the doing of that thing and intentionally aids, by any act or illegal omission of doing that thing, which is lacking in this case as there is no direct or circumstantial evidence to establish that the appellant either aided or instigated the deceased to commit suicide or entered into any conspiracy to aid her in committing suicide. Under Section 113-A of the Evidence Act, the prosecution has first to establish that the woman concerned had committed suicide within a period of seven years from the date of her marriage and that her husband or any relative of her husband had subjected her to cruelty. Thus, this section gives a discretion to the Court to raise such a presumption, having regard to all the other circumstances of the case, which means that where the allegations are of cruelty, it must consider the nature of cruelty to which the woman was subjected, having regard to the meaning of word “cruelty” in Section 498-A of the Indian Penal Code. The mere fact that woman committed suicide within seven years of her marriage and that she had been subjected to cruelty by her husband or any relative of her husband does not automatically give rise to the presumption that the suicide had been abetted by her husband or any relative of her husband. The Court is required to look into all the other circumstances of the case. The Court is required to look into all the other circumstances of the case. One of the circumstances which has to be considered by the Court is whether the alleged cruelty was of such a nature as was likely to drive that woman to commit suicide or to cause grave injury or danger to life, limb or health of the woman as held in Ramesh Kumar Vs. State of Chhatisgarh [(2001)9 SCC 618]. 14. The Supreme Court in Smt. Raj Rani v. State (Delhi Administration); AIR 2000 SC 3559 held that while considering the case of cruelty in the context to the provisions of Section 498-A IPC, the court must examine that allegations/accusations must be of a very grave nature and should be proved beyond reasonable doubt and in Girdhar Shankar Tawade v. State of Maharashtra, AIR 2002 SC 2078, the Apex Court held that “cruelty” has to be understood having a specific statutory meaning provided in Section 498-A I.P.C. and there should be a case of continuous state of affairs of torture by one to another. 15. The Supreme Court taking note of the above judgments inter-alia in the judgment of Manju Ram Kalita v. State of Assam 2009 (2) S.L.J. (S.C.) 1036 observed that “cruelty” for the purpose of Section 498-A Indian Penal Code is to be established in the context of S. 498-A IPC as it may be different from other statutory provisions. It is to be determined /inferred by considering the conduct of the man, weighing the gravity or seriousness of his acts and to find out as to whether it is likely to drive the woman to commit suicide etc. It is to be established that the woman has been subjected to cruelty continuously/persistently or at least in close proximity of time of lodging the complaint. However, petty quarrels cannot be termed as ‘cruelty’ to attract the provisions of the aforesaid Section. 16. In the instant case, the prosecution has failed to prove the essential elements of the offence of “Cruelty” and in any case the ingredient of the offence punishable under Section 498-A of the Indian Penal Code. Once the prosecution has failed to prove the cruelty, legal presumption under Section 113-A of the Indian Evidence Act cannot be drawn to prove the charge under Section 306 of the Indian Penal Code. Otherwise also, both the charges are independent of each other. Once the prosecution has failed to prove the cruelty, legal presumption under Section 113-A of the Indian Evidence Act cannot be drawn to prove the charge under Section 306 of the Indian Penal Code. Otherwise also, both the charges are independent of each other. The case of prosecution is of no evidence in so far as the abetment of suicide by the deceased is concerned. 17. The above position apart, the statement of PW13 SI Hari Ram also needs to be noted. On 17.7.1997, he had recorded the statement of Shiv Chand co-accused. As per said statement, a case was made out under Section 309 of the Indian Penal Code. Thereafter, he inspected the place of incident and prepared the site plan Ex.PW13/A. Shiv Chand had also produced bottle of poison, which was found in the room of Rajni and he too took it into possession, thereafter he received the information that Rajni had died. Then he got postmortem conducted in IGMC, Shimla. In cross-examination, he stated that the relative of the deceased i.e. parents of the deceased were also present in the hospital. He had talked with them and they did not disclose him in the hospital that the deceased was harassed by the accused persons and the dead-body was handed over to the appellant. He also admitted having recorded statement of Shiv Chand aforesaid whereby no allegations of mal-treatment etc. were attributed to the accused persons even on 19.7.1997. Neither the FIR which was lodged by Shiv Chand nor his statement and the statement of other witnesses found the light of the day during their trial. It is alleged that Inspector/SHO Joginder Singh had misplaced that file. Even the inquest papers which were prepared in duplicate have not been placed on file where the presence of parents and their version if any might have been found mentioned, but these papers were also conveniently with-held, in the above pretext which are always prepared at least in triplicate. 18. PW4 Gopal Singh, Reader to the Dy. Superintendent of Police stated that since the original file was lost and it was reconstituted on the papers available in the office of SDPO Rampur. 19. PW8 ASI Prem Singh also did not make any reference about the previous papers, enquiry or investigation. He took up the investigation after lodging the report by PW1 Kaman Singh on 2.10.1997. Superintendent of Police stated that since the original file was lost and it was reconstituted on the papers available in the office of SDPO Rampur. 19. PW8 ASI Prem Singh also did not make any reference about the previous papers, enquiry or investigation. He took up the investigation after lodging the report by PW1 Kaman Singh on 2.10.1997. What had happened in between 19.7.97 till date, he did not trouble himself to find out the real facts. 20. PW11 SI Bhupinder Singh, the then SHO stated that PW13 SI Hari Ram and PW8 ASI Prem Singh both were Investigating Officers in this case and he had prepared the challan under Section 173 of the Code of Criminal Procedure on the receipt of the report of the Chemical Analyst Ext.PW11/A. He categorically stated that the file relating to present FIR was lost by Inspector Joginder Singh after his transfer, which means after preparing the challan. This making the entire story quite unnatural and fishy. 21. The above material reveals that pursuant to the FIR under Section 309 of the Indian Penal Code at the instance of Shiv Chand, the entire case file was misplaced and new FIR No.63/97 was lodged at the instance of PW1 Kaman Singh. The inference is that the earlier investigation done by PW13 Hari Ram was replaced by the subsequent investigation of PW8 ASI Prem Singh. No proceedings under Section 174 Cr.P.C. were conducted. The Code contemplates the following steps to be carried out during such investigation:- (i) Proceeding to the spot; (ii) Ascertainment of the facts and circumstances of the case; (iii) Discovery and arrest of the suspected offender; (iv) Collection of evidence relating to the commission of the offence which may consists of:- (a) The examination of various persons (including the accused) and the reduction of their statements into writing, if the Officers thinks fit, (b)The search of places or seizure of things considered necessary for the investigation and to be produced at the trial; and (v)Formation of the opinion as to whether on the material collected, there is a case to place the accused before a Magistrate for trial and if so, to take necessary steps for the same by the filing of a charge-sheet under Section 173 of the Code of Criminal procedure as held in Ashok Kumar Todi v. Kishwar Jahan & Ors. [JT 2011 (3) SC 50]. 27. [JT 2011 (3) SC 50]. 27. As noticed above, right from 19.7.1997 till 2.10.1997, the entire record appears to be deliberately misplaced or with-held, for which Inspector/ SHO Joginder Singh was charge-sheeted and held guilty, as stated by PW10 Savitri Devi. 28. Against the aforesaid background, I am constrained to draw an adverse inference had it been produced it would have favored the accused. The statements of the parents of the deceased that the police declined and did not hear them and told them to report the matter to Dy.S.P., is a cover-up story to explain delay in lodging FIR on 2.10.1997. 27. For the aforesaid reasons, the prosecution story lacks probity and the prosecution evidence does not prove the offence charged against the appellant, hence, his conviction and sentence passed by the learned trial Court for the offences aforesaid is unsustainable, as such set-aside and the appeal is allowed. The appellant is on bail because of suspension of sentence, he is discharged of his bail bonds. Appeal stands disposed of.