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Himachal Pradesh High Court · body

2013 DIGILAW 1058 (HP)

RAJESH KUMAR v. STATE OF H. P.

2013-12-26

SANJAY KAROL

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JUDGEMENT SANJAY KAROL, J.- 1. IN this appeal filed under Section 374 of the Code of Criminal Procedure, convicts Rajesh Kumar (Accused No.1), Neelam Kumari (Accused No.2) and Parkasho Devi (Accused No.3) have assailed the judgment of conviction and sentence dated 28.05.2007, passed by learned Sessions Judge, Hamirpur, H.P., in Sessions Trial No.24 of 2006, titled as State Versus Rajesh Kumar & others, whereby appellants stand convicted for having committed an offence punishable under Section 498-A IPC and sentenced to undergo rigorous imprisonment for a period of three years and pay fine of Whether reporters of the local papers may be allowed to see the judgment? Rs.10,000/- each and in default thereof, further undergo rigorous imprisonment for a period of six months. 2. ON 27.05.2006, at about 8.30 AM S.I./SHO Jagdish Chand (PW.22) received a telephonic information that Rajesh Kumar (accused No.1) brought his wife Neena Kumari at the Primary Health Centre, Kangoo in a dead condition. Information was recorded in the DDR (Ex.PW.20/A). PW.22 along with other police officials immediately proceeded to the Health Centre. There statement (Ex.PW.1/A) of Gian Chand (PW.1) father of Neena Kumari (deceased), was recorded under Section 154 Cr.P.C, on the basis of which FIR No.92/06, dated 27.05.2006 (Ex.PW.19/A), was registered at Police Station Nadaun, under Sections 498-A, 302 and 120-B IPC. Postmortem of dead body was got conducted and report (Ex.PW.16/B) taken by the police. Investigation, based on the FSL report (Ex.PW.16/A) revealed that deceased died on account of consumption of aluminum phosphide (poison). As per complaint, since inception of marriage, accused treated the deceased with cruelty. She was subjected to physical assaults. On more than one occasion, she was driven out of matrimonial home. On 22.05.2006, when deceased came to visit her parents, she again narrated all acts of cruelties committed by not only her husband, but also sister-in-law and mother-in-law, accused Nos.2 and 3, respectively. On 26.05.2006, deceased reluctantly returned to her matrimonial home. On 27.05.2006, complainant was telephonically informed that deceased was taken ill and admitted in a hospital at Kangoo. With the completion of investigation, challan was presented in the Court for trial. 3. ALL the accused were charged for having committed offences punishable under the provisions of Sections 498-A read with Section 34, Section 302 as also 120-B IPC to which they did not plead guilty and claimed trial. 4. With the completion of investigation, challan was presented in the Court for trial. 3. ALL the accused were charged for having committed offences punishable under the provisions of Sections 498-A read with Section 34, Section 302 as also 120-B IPC to which they did not plead guilty and claimed trial. 4. IN order to establish its case, prosecution examined as many as twenty two witnesses and statements of the accused under Section 313 Cr.P.C. were also recorded, in which they took up a defence of false implication. No evidence was led in defence. The trial Court, after appreciating the material proved on record, acquitted the accused of the charge of murder and conspiracy, but convicted them for having committed an offence punishable under Section 498-A. Hence, the present appeal. 5. PERUSAL of record reveals certain facts which are not in dispute. Deceased Neena Kumari was married to accused Rajesh Kumar on 31.05.2002. In December 2003, deceased returned to her parental house and started living separately. Through the wedlock one female child was born. At the time of death, i.e. 27.05.2006, deceased was carrying a child in her womb. In February 2004, deceased initiated legal proceedings for grant of maintenance. The matter was compromised on 10.04.2006 (Ex.PW.14/A). Also petition under the provisions of Hindu Marriage Act, 1955 was filed. Eventually parties agreed to dissolve their marriage by mutual consent. Statements to that effect were also recorded, but however, accused withdrew his consent and the petition was dismissed on 10.05.2005 (Ex.PW.9/A). On 22.05.2006, deceased again left her matrimonial home only to return on 26.05.2006. The following morning she died. Doctor Yogesh Dhiman (PW.16), who conducted the postmortem, after examining the report (Ex.PW.16/A) of the Chemical Examiner, issued postmortem report (Ex.PW.16/B). According to the doctor, cause of death is poisoning by aluminum phosphide. 6. STATE has not filed any appeal, assailing the findings and judgment of acquittal of the accused in relation to charges framed under Sections 302 and 120-B IPC. Hence, present appeal is being considered only from the point of culpability of all the accused, in relation to an offence punishable under the provisions of Section 498-A IPC. Whether accused No.1 and his relatives accused Nos.2 and 3, subjected the deceased to cruelty, falling within the prescribed definition, or not needs to be examined. Hence, present appeal is being considered only from the point of culpability of all the accused, in relation to an offence punishable under the provisions of Section 498-A IPC. Whether accused No.1 and his relatives accused Nos.2 and 3, subjected the deceased to cruelty, falling within the prescribed definition, or not needs to be examined. In this regard, testimony of Gian Chand (PW.1) father of the deceased, Johandu Ram (PW.7) Pradhan, Sheela Devi (PW.10) and Rup Lal (PW.12), is relevant. As per version of PW.1, accused No.1 was having illicit relationship with accused No.2 (Neelam Kumari). All the accused persons harassed and physically assaulted the deceased. She was forced to leave her matrimonial home. Panchayat was informed. With their intervention, matter was patched up. Accused brought the deceased back to the matrimonial home. However accused continued with his acts of torture and cruelty and again drove the deceased out of her matrimonial home. Such atrocities continued over a period of time. The witness has proved the factum of previous litigation inter se the deceased and her husband with regard to matrimonial rights. 7. SUSHMA Devi (PW.4), cousin of the deceased, corroborates the version of Gian Chand (PW.1). Even according to her, deceased returned to her parental home as accused used to assault her. 8. ACCORDING to Pradhan Johandu Ram (PW.7), complainant disclosed that Rajesh Kumar used to physically beat the deceased. To same effect is the testimony of Sheela Devi (PW.10), who proved compromise (Ex.P-6), whereby accused agreed not to physically assault the deceased. This compromise is dated 24.02.2003. It be only observed that in the month of July 2003, another compromise (Ex.P-7) was entered into between the parties, which also stands proved by Savita Sharma (PW.11) who was the elected Pradhan of the concerned Gram Panchayat between 2001 upto 2005. Even she states accused Rajesh Kumar admitted his mistake and agreed not to repeat it in future. Rup Lal (PW.12) clearly testifies complicity of accused No.3. According to this witness deceased would often complain against various acts of cruelty (mental and physical) meted out by accused No.3 (Prakasho Devi). Witness states that on the written assurance (Ex.P6) of Prakasho Devi, of improving her conduct, deceased returned to her matrimonial home. 9. SANTOSH Kumari (PW.13) corroborates the testimony of aforesaid witnesses. 10. According to this witness deceased would often complain against various acts of cruelty (mental and physical) meted out by accused No.3 (Prakasho Devi). Witness states that on the written assurance (Ex.P6) of Prakasho Devi, of improving her conduct, deceased returned to her matrimonial home. 9. SANTOSH Kumari (PW.13) corroborates the testimony of aforesaid witnesses. 10. NOW in view of overwhelming evidence on record, with regard to various acts of cruelty, physical and mental, meted out by all the accused persons, it cannot be said that findings returned by Court below, with regard to guilt of the accused and their conviction under Section 498 IPC, is illegal, erroneous, perverse and has resulted into miscarriage of justice. Evidently accused had been treating the deceased with cruelty since inception of marriage. Deceased was constrained to file a petition for maintenance. She had a child, born through the wedlock, to be taken care of. She did compromise on various occasions. Coming from a rural background, for deceased marriage was sacrosanct. She continued to bear the assaults with the sole object of keeping it alive. Every time she was driven out of her matrimonial home, accused admitted their guilt, regretted and assured of improved conduct. But unfortunately illegal acts continued relentlessly, over a continuous period of time. This was despite assurances. She even agreed to dissolve her marriage, but then accused No.1 withdrew his consent. Four days prior to her death, she was driven away out of her matrimonial home. She was brought back with an assurance of proper conduct and better behaviour. But unfortunately cruelties persisted to an extent that a life was lost. Death took place within 7 years of marriage. Accused were not even able to prima facie discharge their burden of innocence, as is required in law. This was absolutely necessary considering the written apologies and assurances to mend their behaviour and conduct. There is no cross-examination at all with regard to dowry amount paid by the father of the deceased. It be also observed that accused No.1 did transfer his share in the land, in favour of his brother during subsistence of marriage. 11. HENCE viewing from all angle, guilt of the accused stands established by the prosecution, beyond reasonable doubt and judgment and findings returned by the Court below, cannot be said to be perverse or illegal. 12. It be also observed that accused No.1 did transfer his share in the land, in favour of his brother during subsistence of marriage. 11. HENCE viewing from all angle, guilt of the accused stands established by the prosecution, beyond reasonable doubt and judgment and findings returned by the Court below, cannot be said to be perverse or illegal. 12. FOR all the above reasons, I find that findings of conviction and sentence returned by the trial Court are based on correct and complete appreciation of evidence. Thus, it cannot be said that conviction of the accused has resulted into miscarriage and travesty of justice; causing serious prejudice to the accused. Hence for all the aforesaid reasons, present appeal is dismissed and the judgment of the conviction and sentence passed by the trial Court is upheld. Bail bonds furnished by the accused are cancelled. They shall surrender before the trial Court to serve out the sentence. Pending application(s), if any, also stand disposed of.