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2012 DIGILAW 1009 (HP)

State of Himachal Pradesh v. Ram Chand

2012-12-19

DHARAM CHAND CHAUDHARY

body2012
JUDGMENT Dharam Chand Chaudhary, Judge: The challenge herein is to the judgment dated 22.9.2011 passed by learned Sessions Judge, Kinnaur Sessions Division at Rampur Bushahr in Criminal Appeal No.46 of 2007 acquitting thereby the accused persons on reversal of the judgment dated 3.10.2007 passed by learned Sub Divisional Judicial Magistrate, Rampur Bushahr in case No.91-2 of 2004 thereby convicting and sentencing accused No.1 and 3 to undergo simple imprisonment for six months and pay Rs.1000/- as fine each for commission of the offence punishable under Section 120-B of Indian Penal Code (hereinafter referred to as “the Code”) and to undergo simple imprisonment for two years and pay a sum of Rs.2000/- as fine for the commission of offence punishable under Section 354 of the Code and sentencing accused No.1 and 2 to undergo simple imprisonment for a period of two years and pay a sum of Rs.2000/- as fine for the commission of offence punishable under Section 498-A of the Code. 2. The facts of the case as disclosed from the record, in a nutshell, are that complainant Anita Devi (PW-1) is the wife of accused, Ram Chand (hereinafter referred to as “A-1”). Accused No.2, Smt. Baderpatti (hereinafter referred to as “A-2”) is the mother of A-1, whereas, accused No.3, Binesh Kumar (hereinafter referred to as “A-3”) is a resident of the same village to which A-1 and A-2 belong. In the matter of marriages etc. the complainant and A-1 are governed by the customs prevalent in District Kinnaur, a Tribal District of Himachal Pradesh, to which they belong. 3. The marriage, called as small marriage, of the complainant with A-1 was initially solemnized in April, 1999 in a temple at Sarahan. They started living in the matrimonial home in village Chhaladi. The complainant was nicely treated by A-1 till 15.8.2000 and thereafter he started maltreating and torturing her on account of her having given birth to a female child, allegedly not born out of their wedlock. He compelled her to leave the matrimonial home. On being tortured and maltreated by A-1, she had to leave the matrimonial home on 12.11.2000 and went to the house of her parents at village Kafnu. Her in-laws alongwith other respectables visited village Kafnu on 15-20 occasions for settlement of the dispute and take her back to the matrimonial home. He compelled her to leave the matrimonial home. On being tortured and maltreated by A-1, she had to leave the matrimonial home on 12.11.2000 and went to the house of her parents at village Kafnu. Her in-laws alongwith other respectables visited village Kafnu on 15-20 occasions for settlement of the dispute and take her back to the matrimonial home. She however, refused to return to the matrimonial home with them and insisted upon that her husband, A-1 should himself come and take her back to the matrimonial home. Ultimately, on 1.6.2003 her husband executed the writing Ex.PW-1/B before the Pradhan and members, Gram Panchayat, Kafnu and other persons undertaking therein not to torture the complainant either physically or mentally nor will threaten her to commit suicide. After this compromise, their 2nd marriage was solemnized on 11.12.2003 and she returned to the matrimonial home. Her father in dowry had given her Rs.40,000/- in cash and bedding etc. After the 2nd marriage she went to the house of her parents and asked for one more double bed on the pretext that her in-laws had taken the bedding etc. to village Ganvi and that she could not provide bed to her god brother, who happened to visit her house. She also asked for a television on the pretext that her daughter had been going to the house of others to see programmes on television. Her father had thus provided one more double bed and also television to her. Her husband A-1 had also gone to her parental house. In view of fair, popularly known as “Baitha Mahadev”, on 19.2.2004 her husband returned to Chhaladi, whereas, she came back to matrimonial home on 20.2.2004. 4. On 19.2.2004, her husband, who allegedly was suffering with some problem made her to take 3 pills around 8.00 p.m. on the pretext that Doctor had advised both of them to take the medicine. Immediately thereafter she felt doziness and went to sleep. Around 12.00 in the mid night when woke up, found some one (A-3) having beard and bearing ‘kara’ sleeping with her on the bed. She made her husband A-1 to wake up. When he woke up, she told him about that man sleeping on her cot. Immediately thereafter she felt doziness and went to sleep. Around 12.00 in the mid night when woke up, found some one (A-3) having beard and bearing ‘kara’ sleeping with her on the bed. She made her husband A-1 to wake up. When he woke up, she told him about that man sleeping on her cot. He caught hold of her and managed that person to flee away therefrom and also told her that the said person was Binesh Kumar (A-3) and as per mutual understanding between him and said A-3, they have decided to exchange their wives with each other. On being ashamed of outraging her modesty by her husband A-1 and A-3, she brought it to the notice of her parents. Her parents in turn have taken the matter with A-1 and his parents, but of no avail. Instead of finding some solution, they flatly told the parents of complainant to go anywhere they wish to go. This has led in reporting the matter to police of Police Post, Jeori under Police Station, Jhakri. Her statement Ex.PW-1/A under Section 154 Cr.P.C. was recorded by the police on the basis whereof FIR Ex.PW-5/A was recorded. On completion of the investigation, final report under Section 173 Cr.P.C. was filed in the trial Court. Consequently, charges were framed against all the accused, i.e. against A-1 under Section 120-B, 354 and 498-A of the Code, against A-2 under Section 498-A and against A-3 under Sections 120-B and 354 of the Code. 5. After holding the full trial, learned trial Court had convicted and sentenced the accused in the manner as aforesaid and on appeal, the judgment of conviction has been reversed and the accused acquitted by the learned Sessions Judge, Kinnaur Sessions Division at Rampur Bushahr. 6. The State aggrieved by the acquittal of the accused, has assailed the impugned judgment on the grounds, inter alia, that the learned lower appellate Court has appreciated the evidence available on record in a slip shod and perfunctory manner. Direct and cogent evidence produced by the prosecution has not been viewed in its right prospective, but in an unrealistic manner. The reasoning given by learned lower appellate Court while setting aside the judgment passed by the trial Court is not as per the evidence available on record. Direct and cogent evidence produced by the prosecution has not been viewed in its right prospective, but in an unrealistic manner. The reasoning given by learned lower appellate Court while setting aside the judgment passed by the trial Court is not as per the evidence available on record. The prosecution has been able to prove the commission of offence under Section 120-B, 354 and also 498-A of the Code and they were rightly convicted. The lower appellate Court has erroneously acquitted the accused. 7. Having gone through the record and critically analyzing the rival contentions, this Court is of the considered opinion that the lower appellate Court has not committed any illegality or irregularity in reversing the judgment of conviction passed by learned trial Court against the accused persons and acquitted them of all the charges frames against each of them. 8. Before adverting to the evidence produced on behalf of the prosecution and the accused persons in their defence, it is desirable to discuss as to what constitutes an offence punishable under Section 354, IPC with the aid of Section 120-B, IPC and Section 498-A, IPC. The bare perusal of Section 354 read with Section 120-B of the Code reveals that two or more persons should be in agreement to share any unlawful design, viz; in the given facts and circumstances of this case to cause assault or use criminal force against the complainant intentionally to outrage her modesty. 9. If coming to the necessary ingredients required to be pleaded and proved to bring the guilt home to an offender for the commission of an offence under Section 498-A of the Code, are that it is the husband or the relatives of husband of a woman used to subject her to cruelty on account of their willful conduct and harassment of such a nature, coercing her or any person related to her to meet any unlawful demand of any property or valuable security and thereby to drive the woman to commit suicide or cause grave injury and danger to her life, limb or health. 10. Whether the prosecution has been able to bring the guilt home to the accused for the commission of an offence punishable under Sections 354 with the aid of Section 120-B of the Code, beyond all reasonable doubt or not, needs re-appraisal of the evidence as has come on record during the course of trial. 10. Whether the prosecution has been able to bring the guilt home to the accused for the commission of an offence punishable under Sections 354 with the aid of Section 120-B of the Code, beyond all reasonable doubt or not, needs re-appraisal of the evidence as has come on record during the course of trial. 11. There is no iota of evidence to form an opinion that A-1 and A-3 had sat together and there was an agreement between them to outrage the modesty of complainant. The only evidence as has come on record by way of the only testimony of the complainant is that her husband administered 3 pills to her and as a result thereof she felt doziness, hence went to sleep. When woke up around 12.00 mid night, found A-3 sleeping with her on the bed. When she informed her husband about A-3 sleeping with her, he caught hold of her and allowed said A-3 to flee away and told her that they both have the understanding to share their wives. This incident, however, cannot be said to have taken place in the manner, the complainant claims, for the reason, firstly, that A-3, as per her own version is a school boy and unmarried. There is thus no question of any agreement of her husband to exchange their wives by A-3, with each other. Secondly during the night intervening 19/20.2.2004, the fair of Baitha Mahadev was being solemnized in the area to which the parties belong. It has come so not only in her own statement but also in the statements that of DW-2 and DW-3, examined by the accused in their defence that the local residents used to dance through out the night in this fair and A-1 as well the people were dancing and busy in celebration of the fair and as such, A-3 had no occasion to sleep with the complainant on her bed. So far as the testimony of PW-2 Shri Padam Dass, the father of complainant is concerned, the same is hardly of any help to the prosecution case being hearsay, as he was told about the incident by the complainant. The statement of the prosecutrix that she did disclose this incident to her mother-in-law, A-2 is highly doubtful as nothing to this effect has come in her statement Ex.PW-1/A on the basis whereof FIR Ex.PW-5/A was recorded. The statement of the prosecutrix that she did disclose this incident to her mother-in-law, A-2 is highly doubtful as nothing to this effect has come in her statement Ex.PW-1/A on the basis whereof FIR Ex.PW-5/A was recorded. Otherwise also, the Investigating Officer, PW-5 ASI Keshav Singh while in the witness box has stated that it has come in the investigation he conducted in this case that the in-laws of complainant were living separately at village Ganvi, no doubt visiting Chhaladi also intermittently. 12. There is a delay approximately of one month occurred in registration of FIR, which in the considered opinion of this Court is fatal. The alleged occurrence is of the night intervening 19/20.2.2004. The FIR, however, has been registered on the basis of the statement made by the complainant, Ex.PW-1/A in the police station on 12.3.2004. What to speak of any plausible and reasonable explanation to the delay which could be said to be inordinate, there is not even a whisper also in the prosecution story qua this aspect of the matter. There is also no explanation as to why the FIR was forwarded to Ilaqua Magistrate, i.e. Sub Divisional Judicial Magistrate, Rampur Bushahr after three days, i.e. on 15.3.2004 when Police Station, Jhakri is at a distance of about 8-10 Kms. from Rampur Bushahr. The possibility of this case having been engineered and planted upon the accused persons in connivance with the police cannot be ruled out. No finding of conviction could have been recorded against A-1 and A-3 with the help of such a sketchy and highly doubtful evidence produced by the parties for the reason that in criminal cases the standard of proof to bring the guilt home to the accused required should be of a very high degree and mere preponderance of probabilities have no place in the criminal administration of justice. Since the prosecution has miserably failed to prove its case beyond all reasonable doubt, therefore, the learned lower appellate Court has rightly discarded the evidence produced by the prosecution qua this aspect of the matter and committed no irregularity and illegality while acquitting the accused persons, i.e, A-1 and A-3 of the charges framed against each of them under Section 354 read with Section 120-B of the Code. 13. 13. If coming to an offence punishable under Section 498-A of Indian Penal Code, there is again no iota of evidence to believe that the complainant was being harassed by A-1 and A-2 with a view to coerce her to meet their demand for any property or valuable security, or on account of her failure or that of her relation to meet their demand, nor is there any thing suggesting that it is on account of any willful conduct of such a nature likely to drive her to commit suicide or to cause grave injury to her life, limb or health on their part. On the other hand, as per own admission of the complainant and her father (PW-2 Padam Singh) there is no custom of demanding dowry prevalent in their area. Also that the parents give dowry to their daughters as per their wish and capacity. In this case also, as per admitted case of the prosecution, the parents of the complainant were not financially sound and it is for this reason initially the small marriage was solemnized in April, 1999. It is on her 2nd marriage with A-1 in December, 2003, her father, PW-2, as he states while in witness box, gave her Rs.40,000/- in dowry, double bed and trunk etc. voluntarily. He rather admitted that the accused never demanded any dowry from him. The allegation that A-1 and A-2 after her 2nd marriage with A-1 were not satisfied with dowry given to her, started coercing her at the pretext of bringing less dowry, is not at all proved beyond all reasonable doubt because her father while in witness box as PW-2 had stated that one more double bed was demanded by the complainant herself at the pretext that after her in-laws shifted the bedding etc. from Chhaladi to their house at Ganvi, she had no spare bedding and also that on one occasion when her god brother visited her house at Chhaladi, she had no proper bedding to offer him for sleeping. As regards the television, the same was also demanded by the complainant herself at the pretext that her small daughter used to visit the house of others to see programmes on television. In her statement Ex.PW-1/A, there is nothing to suggest that her mother-in-law, A-2 had also been coercing her for bringing lesser dowry. As regards the television, the same was also demanded by the complainant herself at the pretext that her small daughter used to visit the house of others to see programmes on television. In her statement Ex.PW-1/A, there is nothing to suggest that her mother-in-law, A-2 had also been coercing her for bringing lesser dowry. No doubt, such allegations have been levelled by the complainant against her husband A-1 in Ex.PW-1/A, however, in view of the version of her father PW-2, discussed supra, all those articles were demanded by the complainant herself. Above all, her own testimony and that of her father (PW-2) that there is no custom of demanding dowry in their area nor the accused ever demanded any dowry from him, belies the entire prosecution case. 14. Learned lower appellate Court has rightly discarded the “SHARATNAMA” Ex.PW-1/B being of 1st June, 2003. Meaning thereby that all the acts of cruelty, if any, attributed to A-1 and A-2 were condoned by the complainant and even if the execution of this document is presumed, though legal, cogent and acceptable evidence has not come on record in this behalf that she returned to her matrimonial home. The another glaring aspect as has come on record by way of this document is that even the complainant had also agreed not to use abusive language against her husband, A-1. This document even if presumed to be legally and validly executed document, goes to show that not only the A-1 was at fault but the complainant being using abusive language against him was also equally responsible for discomfort in the matrimonial home. Irrespective of this, it is however, significant to note that the execution of this document by A-1 is not proved beyond all reasonable doubt because Gopi Chand, DW-2, allegedly one of the marginal witness to this document while in the witness box has stated that on that day no document like Ex.PW-1/B was reduced into writing and rather after persuading the parents of the complainant and their assurance that they will send her back to the matrimonial home after six days, they came back. He has also denied his signature encircled on this document. He has also denied his signature encircled on this document. Therefore, no doubt, the version of the Pradhan of Gram Panchayat, Kafnu reveals that this document was reduced into writing at the instance of A1, however, the marginal witness DW-2 cast clouds while stating that no such document was reduced into writing on that day and thereby rendered the prosecution story improbable. Otherwise also, a document in the nature of Ex.PW-1/B executed 8-9 months prior to the latest incident, viz; in this case was of the night intervening 19/20.2.2004, has no bearing in this case and rather is helpful in forming an opinion that the acts of cruelty as on 1.6.2003 the date of execution of this document were attributed to A-1 and A-2 were condoned by the complainant and her parents. 15. In view of the conclusion hereinabove culled out by re-appraising the material prosecution evidence and the defence evidence, there is no need to embark upon the evidence as has come on record by way of the testimony of Mahesh Kumar (PW-3), allegedly the god brother of the complainant as whatever evidence has come on record by way of his testimony is merely hearsay. As regards PW-4, Shri Inder Singh, he has turned hostile to the prosecution and it being so, he rather has supported the defence version. As regards PW-5, ASI Keshav Singh, he being the Investigating Officer, the evidence as has come on record by way of his statement would have been termed as link evidence had the prosecution been otherwise able to bring home the guilt to the accused beyond all reasonable doubt. 16. For the foregoing reasons, I find no illegality or irregularity having been committed by the learned lower appellate Court while setting aside the judgment of conviction passed against the accused persons by learned trial Court and acquitting them of the charges framed against each of them. This appeal being devoid of any merit deserves dismissal. 17. In view of the above observations, this appeal fails and the same is accordingly dismissed. The personal bonds furnished by the accused are ordered to be cancelled and surety discharged. Records be sent back.