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2012 DIGILAW 804 (HP)

Om Parkash @ Omi v. State of Himachal Pradesh

2012-11-07

SURINDER SINGH

body2012
Judgment Surinder Singh, J. This is a jail appeal filed by the convict-appellant, feeling aggrieved and dissatisfied by the judgment of conviction and sentence passed by the learned trial Court in Sessions Trial No.12 of 2010 decided on 31.10.2011, for the offence punishable under Section 306 of the Indian Penal Code, whereby, he has been sentenced to undergo rigorous imprisonment for a period of five years and to pay fine of Rs.5,000/- with default clause. 2. Shri L.N. Sharma, learned counsel was appointed as Legal aid counsel for the appellant as per order dated 24.9.2012. Paper Book was supplied to him and the matter was taken up for final hearing. 3. In short, the prosecution case can be stated thus. The deceased Ichhiya Devi was married to the appellant, hereinafter to be referred as “the accused” about 15 years back from her death. She gave birth to two sons from this wedlock. It is alleged that after her marriage, the accused had developed habit of taking liquor and became addict. The accused is alleged to have been mal-treating and torturing the deceased under the influence of liquor making her life a hell. She kept on apprising her parents on telephone about the maltreatment. They though intervened and tried to impress upon the accused to mend his ways, but all this proved futile. Consequently, the eldest son aged about 11 years got fed up as he was also maltreated and took refuge in the house of her parents and the younger one aged about 7 years resided with the deceased. The parents of the deceased did not report the matter to the police feeling that the accused might accelerate the tortoise act to the deceased making her life difficult. It is also the prosecution case that one and half years before her death, accused gave merciless beatings to her and even her ear was bitten-off. The parents had again approached the accused and requested him not to repeat his illegal activities, though he assured but even thereafter they did not find any change in him. After about six months, the accused again gave beatings to the deceased. Her father, PW5 Amar Singh, sent his sons Kartar Singh and Dara Singh to the house of the accused to impress upon him to behave properly, but this also did not yield any result. After about six months, the accused again gave beatings to the deceased. Her father, PW5 Amar Singh, sent his sons Kartar Singh and Dara Singh to the house of the accused to impress upon him to behave properly, but this also did not yield any result. The deceased got fed up with constant harassment, maltreatment and beatings given by the accused and finally on 23.12.2009 during the night, doused herself into kerosene oil and sat ablaze. Thereafter, she came crying outside in the courtyard. PW1 Sandhya Devi, her Jethani got attracted by the cries. She alongwith some neighbourers came to the Courtyard and put off the fire. PW2 Savitri and PW3 Kamla changed her burnt clothes, thereafter she removed to the hospital at Bharmour. The doctor reported the matter to the police, which fact was entered in the daily -diary No.3A Ext.PW16/A. Police visited hospital and found the deceased in charred condition. However, an application Ext.PW7/B was moved by the SHO PW16 Krishan Chand Bhatiya whether she was fit to make the statement; the doctor opined that she was not fit for the said purpose. During the intervening night of 23rd/24th December, 2009 she died of burn injuries. Police also prepared inquest papers and sent the body for the post-mortem. As per MLC Ext.PW7/A, there were clinically 45 to 54% burn injuries on her person. 4. The autopsy was conducted by PW13 Dr. Gagandeep Bhardwaj. The viscera was preserved and sent for forensic examination, but no poison was detected. In the opinion of the doctor, the deceased died due to extensive epidermal burns leading to hypoveleamice shock and septicaemic shock causing cardio pulmonary arrest. The probable time between injury and death was less than 12 hours and between death and post-mortem was less than 24 hours. The postmortem report is Ext.PW13/B. 5. During the investigation of this case, the Investigating Officer recorded the statements of the neighbourers, family members of the accused and also her parents and PW6 sister Nirmala Kumari. 6. After completing the challan, it was presented in the Court for the trial of the accused for the offence punishable under Section 306 of the Indian Penal Code and also under Section 201 of the Indian Penal Code, as according to the case of the prosecution, the Courtyard of the house of the accused was cleaned by the accused thereby destroying the evidence. The accused was accordingly charge-sheeted, to which he pleaded not guilty and claimed trial. 7. To prove its case, prosecution examined its witnesses. The accused was also examined under Section 313 of the Code of Criminal Procedure. He denied the mal-treatment or torture to his wife. According to him, she was a short-tempered lady and might have committed the suicide in a fit of anger. When called upon to enter into his defence, he did not lead any evidence in defence, however, relying upon the statements of the prosecution witnesses, convicted and sentenced the accused for the offence punishable under Section 306 of the Indian Penal Code as aforesaid, but, he was acquitted for destroying the evidence as having not been proved. The impugned judgment of conviction and sentence is under challenge in the present appeal. 8. Shri L.N. Sharma, learned counsel for the accused vehemently argued that from the evidence on record, it appears that the offence under Section 306 of the Indian Penal Code is not made out, as the prosecution lacks in sort of instigation or abetment which led the deceased to commit suicide. He also referred to the statements of hostile witnesses, who according to him, probablised the defence version that the deceased was a short-tempered lady which fact was totally ignored from consideration by the learned trial Court. 9. On the other hand, Shri P.M.Negi, learned Deputy Advocate General supported the impugned judgment of conviction and sentence and further submitted that the circumstances on record are conclusive in nature of tendency which proved the mal-treatment and cruelty meted out by the accused and that it was so severe in nature that the deceased was left with no other remedy but to commit suicide, as such the evidence of the prosecution fits in well to prove the essential ingredients of the offences for which he was convicted or in alternative for the offence under Section 498-A of Indian Penal Code. 10. I have given my thoughtful consideration to the rival contentions of the parties and have carefully and meticulously examined the evidence on record. 11. 10. I have given my thoughtful consideration to the rival contentions of the parties and have carefully and meticulously examined the evidence on record. 11. PW1 Sandhya (sister-in-law of the deceased), PW2 Savitri and PW3 Kamla Devi (both neighbourers of the deceased) though turned hostile as they did not support the case of the prosecution, yet according to them, the deceased had finished her life by dousing the kerosene oil and they reached the spot, put off the fire and tried to save her, thereafter removed her to the hospital. In cross-examination conducted by the accused, they admitted that the deceased was short-tempered lady. When the deceased was brought to the CHC in the burnt condition, PW-4 Veena Devi also alleged to have asked the deceased as to how she caught fire, but according to her, she prayed to God as to what she had done, except this, she did not tell anything else. She further stated that the police did not come to the hospital so long as she remained hospitalized in CHC. After giving first-aid to her, no conversation took place, as she was in sub-conscious condition, but kept on talking. 12. PW5 Amar Singh is the father of the deceased. He stated that the accused was constantly taking the liquor and had been giving beatings and mal-treating the deceased. At many times he had visited the accused himself and sometime his wife had also visited the house of the accused to impress upon him to mend his ways. He also stated that the elder son of the deceased remained in his house for about one year before her death as the accused used to turn him out from the house under the influence of liquor. He further stated that about 5-6 months prior to her death, accused had beaten her badly. Though in cross-examination, he stated that he had never questioned the accused or his deceased daughter the reason as to why he used to beat her. He also did not remember when his deceased daughter apprised him about the beating and mal-treatment last time given to her. 13. Though in cross-examination, he stated that he had never questioned the accused or his deceased daughter the reason as to why he used to beat her. He also did not remember when his deceased daughter apprised him about the beating and mal-treatment last time given to her. 13. PW12 Smt. Gayato is the mother of the deceased also made the similar statement to that of PW5 above and further stated that they had also requested the brothers of the accused to impress upon him not to torture their daughter, but they told that they have already made efforts in this regard, but the accused is incorrigible. She also stated that since she alongwith her husband was alone and did not visit her daughter when she complained of the behaviour of the accused about two days prior to her death, but when confronted with her statement under Section 161 of the Code of Criminal Procedure, the above fact was not found mentioned therein. She also stated that her daughter was neither short-tempered nor hyper sensitive. Further according to her, when she stayed in the house of the deceased, the accused had also inflicted an injury on her ear. 14. PW6 Nirmala Kumari is the sister of the deceased. She stated that on 21.12.2009 she had a telephonic conversation with her sister and she had apprised her about mal-treatment by the accused. In cross-examination, she stated that for the first time, she came to know about the ill-treatment and beatings by the accused approximately nine years of her death and thereafter the behaviour of the accused remained as such constantly with the deceased. According to her, after one or two months, accused used to give beating to her sister. She further stated that they have also warned the accused not to visit their house under the influence of liquor, but he was so shameless that despite that he had been visiting their house and indulged to beat her sister while in intoxication. 15. On culling the evidence, I find that there is overwhelming evidence insofar as the ‘cruelty’ meted out by the accused to the deceased is concerned, but to sustain the conviction under Section 306 of the Indian Penal Code, the prosecution evidence lacks its essentials. 15. On culling the evidence, I find that there is overwhelming evidence insofar as the ‘cruelty’ meted out by the accused to the deceased is concerned, but to sustain the conviction under Section 306 of the Indian Penal Code, the prosecution evidence lacks its essentials. It is not proved that the accused had played an active role by giving an instigation or by doing certain acts to facilitate the commission of suicide. 16. Merely on the allegation of harassment without there being any positive action proximate to the time of occurrence on the part of the accused which led or compelled the person to commit suicide. The said offence is not made out. 17. The abetment is defined under Section 107 of the Indian Penal Code. A person is said to abet the commission of suicide when a person instigates any person to do that thing as stated in clause First or to do anything as stated in clauses second and third under Section 107 of the Indian Penal Code. Section 109 of the Indian Penal Code provides that if the act abetted is committed pursuant to and in consequence of abetment then the offender is to be punished with the punishment provided for the original offence. 18. The prosecution in the instant case heavily relied upon the allegations of harassment and torturing the deceased on various points of time, but the evidence does not support the positive act on the part of the accused to instigate or aid in committing suicide by the deceased. 19. The intention of the Legislature is clear that in order to convict a person under Section 306 of the Indian Penal Code, there has to be a clear mens-rea to commit the offence. It also requires an active act or direct act which led the deceased to commit suicide seeing no option and this act must have been intended to push the deceased into such a position that he/ she commits suicide. In this behalf reliance may be placed on the judgment of apex Court rendered in M.Mohan v. State [ 2011 CRI.L.J.1900]. 20. Looking into all the angles, the prosecution has failed to prove the active act or direct act immediately before the commission of suicide, which led the deceased to finish her life seeing no other option. In this behalf reliance may be placed on the judgment of apex Court rendered in M.Mohan v. State [ 2011 CRI.L.J.1900]. 20. Looking into all the angles, the prosecution has failed to prove the active act or direct act immediately before the commission of suicide, which led the deceased to finish her life seeing no other option. Therefore, in my opinion, the offence under Section 306 of the Indian Penal Code is not made out as per the well established legal parameters, but however, the offence under Section 498 A of the Indian Penal Code stands clearly established against the accused. Accordingly, his conviction for the offence punishable under Section 306 of the Indian Penal Code is set-aside, but however, he is held guilty for the offence under Section 498-A of the Indian Penal Code and is accordingly convicted for the said offence and sentenced to undergo rigorous imprisonment for a period of 2 ½ years and to pay a fine of Rs.5,000/- and in default of payment of fine, to further undergo simple imprisonment for six months. In result, the appeal is partly allowed to the above extent. 21. The learned trial Court is directed to send amended jail warrants to the Superintendent of the jail concerned in conformity with this judgment. 22. The appeal stands disposed of, so also the pending application(s), if any. 23. Send down the records.