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2012 DIGILAW 287 (HP)

Gurdeep Singh v. State Of Himachal Pradesh

2012-05-16

DEEPAK GUPTA, V.K.AHUJA

body2012
JUDGMENT : V.K. Ahuja, J. This is an appeal filed by appellant Gurdeep Singh against the judgment dated 29.10.2004, passed by learned Additional Sessions Judge, Fast Track Court, Una, vide which the appellant was held guilty for the charge framed against him under Sections 498A and 306 IPC and was sentenced as under: Section 498A RI for a period of three years, with a fine of Rs. 25,000. In default of payment of fine, the appellant was to further undergo RI for a period of six months. Section 306 RI for a period of ten years, with a fine of Rs. 50,000. In default of payment of fine, the appellant was to further undergo RI for a period of two years. Briefly stated, the facts of the case are that on 1.9.1998 at 5.00 p.m., a rapat was lodged at Police Post, Haroli, District Una, Himachal Pradesh by complainant Jeet Singh, accompanied by Pradhan of the Panchayat. The complainant alleged that he had married his daughter Prema alias Babli two years ago with appellant Gurdeep Singh and one son was born from this wedlock. He further alleged that whenever his daughter visited her parental house, she used to tell him that her husband Gurdeep Singh, mother-in-law Mohinder Kaur and brother-in-law (Devar) Surjit Singh used to give her beatings without any reason. They also used to complain that her parents had not given sufficient dowry. The complainant alleged that his wife had died one year ago. He also alleged that 15-16 days ago, his daughter had visited him and on 31.8.1998, when he went back to his house, he was informed by his daughter-in-law Balwinder Kaur that Prema's husband Gurdeep Singh had visited their house on 31.8.1998 at 3.00 p.m. and gave abuses to Babli and at about 4.00 p.m., he under a threat took away Babli, his daughter. This had been seen by Achhar Singh and Balwinder Kaur. At about 11.00 p.m., on the same night, he was informed by Halwai Gian Singh that his daughter had died in Haroli hospital. The police officer came there and recorded the statement on the basis of which the FIR was registered. This had been seen by Achhar Singh and Balwinder Kaur. At about 11.00 p.m., on the same night, he was informed by Halwai Gian Singh that his daughter had died in Haroli hospital. The police officer came there and recorded the statement on the basis of which the FIR was registered. On conclusion of the investigation, the challan was filed against the appellant (husband), mother-in-law Mohinder Kaur, PW-3 and brother-in-law (Dewar) Surjit Singh, before the Court of the learned Judicial Magistrate 1st Class, Court No. II, Una, who committed the case to the learned Sessions Judge. The learned Sessions Judge assigned the case to the learned trial Court, who tried the accused for the offences as detailed above. On conclusion of the trial, the husband of the deceased, namely, appellant Gurdip Singh was held guilty and sentenced as detailed above, while the remaining two accused persons were acquitted by the learned trial Court. Being aggrieved, the appellant has filed this jail appeal. 2. We have heard Ms. Vandana Kuthiala, Advocate, for the appellant and Mr. Vivek Singh Thakur, learned Additional' Advocate General, for the respondent, and have gone through the record of the case. 3. The first question which arises for consideration in a case u/s 306 IPC is as to the cause of death, which is very material. Until and unless it is proved that the deceased had died by committing suicide, the offence u/s 306 IPC cannot be said to have been proved since the husband cannot be proved to have abetted the commission of suicide by his wife until and unless the cause of death is suicide. 4. Coming to the findings recorded by the learned trial Court, the learned trial Court has not considered this question and referred to the specific evidence in this regard to come to a proper finding in regard to the fact whether the death was due to suicide or not. However, the learned trial Court has made a reference to the statement of PW-7 Dr. Gian Inder, who conducted the postmortem on the body of the deceased, and observed as under: PW. 7 Dr. Gian Inder the then Medical Officer Zonal Hospital, Una conducted post-mortem of deceased Prema alias Babli and as per post-mortem report Ex. PW. However, the learned trial Court has made a reference to the statement of PW-7 Dr. Gian Inder, who conducted the postmortem on the body of the deceased, and observed as under: PW. 7 Dr. Gian Inder the then Medical Officer Zonal Hospital, Una conducted post-mortem of deceased Prema alias Babli and as per post-mortem report Ex. PW. 7/A reserved his opinion to the cause of death till the report of the chemical examination of viscera in which no poison was detected thereby cause of death could not be ascertained, however this witness has deposed that it was a case of poisoning as per application for post-mortem Ex. PW. 7/B as well as inquest report Ex. PW. 7/C. 5. After referring to this part of the evidence in regard to medical evidence and that of the expert, the Court has concluded as under: PW. 7 Dr. G.S. Didhra the then Medical Officer, Haroli has medically examined the deceased before her death when she was brought to the hospital as she died within few minutes after initiation of treatment and has opined chemical impression to be celphos poisoning as per MLC Ex. PW. 8/A. It was further observed in para 13 by the learned trial Court as under: PW. 11 Dr. B.R. Rawat Assistant Director State Forensic Science Laboratory has replied the queries of the police vide reference Ex. PW. 11/D through report Ex. PW. 11/A with his signatures at encircled portion Ex. PW. 11/ B to the effect that poison may have eliminated by vomiting and diarrhea or it has disappeared from the lungs by evaporation and oxidation and further that after absorption it may be detoxified, conjugated and eliminated from the system being aluminum phosphide (celphos) acts as a gaseous poison inside the body and the loss of gaseous poison is muck rapid than other poison. 6. It was further observed by the learned trial Court as under: The statement of PW. 8 Dr. G.S. Didhra the then Medical Officer Haroli Hospital and examined the deceased on 31.8.1998 has proved the death of deceased on 31.8.1998 in the Haroli hospital as the doctor concluded by medical impression to be celphos poisoning as per MLC Ex. PW. 8/ A and in his cross-examination this witness has admitted that there would not be any cause for loss of poison while collecting gastic lavage as sample. PW. 8/ A and in his cross-examination this witness has admitted that there would not be any cause for loss of poison while collecting gastic lavage as sample. The doctor has also admitted that the patient was brought by her family members to the hospital for treatment, but he has denied that the patient was fully conscious when brought to the hospital though the doctor has admitted that the patient did not disclose the behaviour of her family members. PW. 11 Dr. B.R. Rawat Assistant Director State Forensic Science Laboratory who has answered the queries of the police through letter Ex. PW. 11/ D vide his opinion Ex. PW. 11/A that poison might have eliminated by vomiting and diarrhea or by evaporation and oxidation from the lungs or might be detoxified conjugated and eliminated from the system after absorption because aluminum phosphide (celphos) acts as a gaseous poison inside the body which is clearly the cause for non-detection of poison in the viscera of the deceased which was sent to the State Forensic Science Laboratory and the fact of cause of death of the victim is proved to be poisoning as per opinion of PW. 8 Dr. G.S. Didhra who examined the victim deceased at the time of her death immediately when she was brought to the hospital at Haroli. Therefore, the prosecution evidence on record has been able to prove that deceased/victim Prema alias Babli committed suicide. 7. It has to be considered as to whether this conclusion drawn by the learned trial Court on the basis of the statements of the Medical Officers and an alleged expert is sufficient to prove the cause of death as suicide. The material statement in this regard can be said to be that of PW-7 Gian Inder, who conducted the postmortem on the body of the deceased, who observed as under: 1. External appearance: Well built body of a female 5' in length wearing Ash colour with red print shirt and printed Maroon colour Salwar, yellow metal bangle and white coloured twisted bangle in left forearm, golden ear rings in both ears, nose pin, and green colour dupatta. Rigor Mortis present. P.M. staining were present. There was no marks of external injury on the body. No mark of ligature present. III-Thorax Walls, ribs and cattilages, Pleurac, Larynx and trachea, right lung, left lung normal, Pericardium also normal. Rigor Mortis present. P.M. staining were present. There was no marks of external injury on the body. No mark of ligature present. III-Thorax Walls, ribs and cattilages, Pleurac, Larynx and trachea, right lung, left lung normal, Pericardium also normal. Portion of right lung was preserved for chemical examination. Pericardium and large vessels are empty and heart was empty and portion was preserved for chemical examination. IV-Abdomen Walls, Peritoneum, mouth, harynx and esophagus are normal, stomach contained about 200 ml semi digested food dark in colour and mucosa was congested and preserved for chemical analysis. Small intestines and its contents were normal and its portion was preserved for chemical examination. Large intestines and their contents were normal. Liver, spleen, kidney were normal and a portion preserved for chemical analysis. Bladder was normal and empty, organs of general external and internal was normal. 8. PW-7 Dr. Gian Inder stated that the cause of death was reserved till the receipt of chemical examination report, since no poison was detected in the viscera, the cause of death in this case could not be ascertained. He has given a definite opinion that cause of death could not be given, however, he further stated that it was mentioned in the application for postmortem Ext. PW-7/B and inquest report Ext. PW-7/C that it was a case of poisoning. The opinion has been drawn from the application for postmortem which suggests that it was a case of poisoning but he has not concluded so and this part of the statement of the Medical Officer PW-7 Dr. Gian Inder, who conducted the postmortem has been relied upon by the learned trial Court to hold that it was a case of suicide. In cross examination, he is specific that he has not observed as under: It is correct that I have not observed any symptom of poison and thereby I have not mentioned the same in my report. It is correct that in the present case the cause of death can be heart failure or any other cause. 9. The statement of PW-8 Dr. G.S. Didhra, who initially examined the deceased, does not help the Court in arriving at any conclusion regarding the cause of death. In regard to expert examined by the prosecution, there is statement of PW-11 Dr. 9. The statement of PW-8 Dr. G.S. Didhra, who initially examined the deceased, does not help the Court in arriving at any conclusion regarding the cause of death. In regard to expert examined by the prosecution, there is statement of PW-11 Dr. B.R. Rawat, Assistant Director, State Forensic Science Laboratory, who had replied to the queries put up to him as under: 1. The poison may have eliminated by vomiting and diarrhea. 2. The whole of poison has disappeared from the lungs by evaporation and oxidation. 3. The poison after absorption may be detoxified, conjugated and eliminated from the system. The aluminium phosphide (Celphos) acts as an gaseous poison in side the body, the loss of gaseous poison is much rapid than other poisons. 10. PW-11 Dr. B.R. Rawat admitted that he had not examined the dead body of deceased Babli. He had only examined the samples sent for examination in which no traces of poison were detected and the report in, this regard is Ext. DA. He also admitted that he had opined on the basis of the facts that it was a case of poisoning referred by the police. He also admitted that sample gastic lavage was not sent in this case and the same was not examined as per report Ext. DA. 11. It is, therefore, clear from the above discussion that the Medical Officer, who was primarily to report in regard to the cause of death after seeing the chemical examiner's report, has nowhere opined that it was a case of poisoning and the cause of death was poisoning and rather he has not ruled out the possibility of death by heart failure. Therefore, until and unless the prosecution evidence is cogent, reliable and specific in regard to the cause of death, it could not have been held by the learned trial Court that it was a case of suicide and, therefore, those findings are not sustainable in the eye of law and we hold so accordingly. 12. Coming to the other evidence in regard to cruelty, the father of the deceased Jeet Singh has been examined as PW-1, who stated that his daughter used to disclose to him that her husband used to threat her as well as harass her on account of bringing insufficient dowry. He admitted that the deceased was married to the appellant for the last 7-8 years. He admitted that the deceased was married to the appellant for the last 7-8 years. He also stated that his daughter visited her parental house 4-5 days prior to her death and at that time she disclosed that her husband used to threat her as well as harass her for bringing insufficient dowry. He further stated that the appellant came to his house, took his daughter by slapping her in his house and on the same night she died. He stated that when his daughter was beaten by the appellant, the occurrence was witnessed by his daughter-in-law. In his statement, PW-1 Jeet singh has not referred to any specific demand of dowry or any date, month or time or the probable time when the complaint was made to him by the his daughter and in whose presence. He only stated in general that she was being maltreated on account of bringing insufficient dowry but no details were furnished, as mentioned above. He has stated that he was told by his daughter-in-law only that his daughter was beaten by the appellant at his house, meaning thereby that he had not witnessed the beatings given to his daughter by the appellant. He was only told about this fact by his daughter-in-law. He also stated that his daughter was happy in her in-laws' house till the death of her mother, who died after one year of the marriage of his daughter. 13. The said daughter-in-law of the complainant Jeet Singh, namely, Balwinder kaur has been examined as PW-3, who stated that as and when Babli used to visit them, she used to disclose that she was being harassed by her in-laws including her husband, mother-in-law and brother-in-law, (brother of her husband), while in his testimony, PW-1 Jeet Singh had only named the appellant and did not state about other accused. She, however, came up with the plea that when she disclosed these facts to her husband, he contacted his maternal uncle Dilbag Singh, who had arranged the marriage. She also stated that the appellant and the other co-accused sought apology for their conduct, which was never so stated by PW-1 Jeet Singh. She further stated that the appellant came to their house and asked Babli to get ready and slapped her twice or thrice and told that scooter be given to her husband, which was never so stated by PW-1 Jeet Singh. She further stated that the appellant came to their house and asked Babli to get ready and slapped her twice or thrice and told that scooter be given to her husband, which was never so stated by PW-1 Jeet Singh. Thereafter, Babli accompanied her husband to her in laws 'house. She was confronted with her police statement wherein there is no mention of demand of scooter by the appellant. She denied the suggestion that the appellant had disclosed that his mother was ailing, so he wanted to take Babli with him and she accompanied him. The appellant stayed in their house for one hour and on way to bus stand, the deceased told her about the demand of dowry including scooter which was not so mentioned in the police statement. The cause of the discord or the dispute, as has been suggested and as come up in evidence, is that Babli was engaged with Achhar Singh, brother of this witness, prior to her marriage with the appellant and since Achhar Singh used to reside in their house earlier, this may be the reason of dispute and the appellant insisted his wife to live in her in-laws' house. There is no positive evidence in this regard except the admission of some suggestions by this witness which suggests about the cause for marital discord. In regard to the apology, she stated that she was not present there, when the appellant as well as his mother and his brother apologized, but it was disclosed to her by her husband. 14. The brother of the deceased and husband of PW-3 Balwinder kaur, namely Prem Singh has been examined as PW-4, who stated that the marital relations between the deceased and her husband were cordial for one and half year and thereafter the problem started when the appellant started demanding dowry and the matter was patched up. He accompanied Gian Singh Halwai and left his sister in her in-laws' house on the assurance of good behaviour of keeping her properly. He learnt that the appellant had visited their house, had an altercation and gave beatings to his sister and took her to her in-laws' house. He also stated that his wife had told him that his sister had been given beatings when she was taken and it was not witnessed by him. 15. He learnt that the appellant had visited their house, had an altercation and gave beatings to his sister and took her to her in-laws' house. He also stated that his wife had told him that his sister had been given beatings when she was taken and it was not witnessed by him. 15. PW-5 Achhar Singh, the brother of PW-3 Balwinder Kaur, has stated that he used to stay in the house of his sister PW-3 Balwinder Kaur occasionally in a week. Babli used to visit her parental house in his presence. The appellant came to take back Babli but she insisted to stay there for some time in view of the injury on the hand of PW-3 Balwinder Kaur. However, he stated nothing about the harassment to the deceased by her in-laws. Though he was a casual visitor to the house, but he was known to the deceased and in case the deceased was being harassed by her in-laws, it was quite natural that he should have been apprised of this fact by the deceased, which is not so in the present case. The statements of other witnesses are not very material. In view of the above discussion, it is clear that the evidence in regard to maltreatment or the cause of maltreatment was not cogent and reliable and not consistent. We accordingly hold that the findings of the learned trial Court convicting and sentencing the appellant u/s 306 and 498A IPC are not sustainable in the eye of law and the same are liable to be set aside. Accordingly, the appeal filed by the appellant is allowed and he is acquitted of the charges framed against him. Fine, if deposited, be refunded to the appellant.