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2013 DIGILAW 46 (HP)

State of Himachal Pradesh v. Dharam Pal

2013-01-08

R.B.MISRA, SURINDER SINGH

body2013
JUDGMENT Surinder Singh, J The State has challenged the acquittal of the respondent, for the offence punishable under Sections 498-A and 306 of the Indian Penal Code, in the present appeal. (ii) The background facts are that the deceased was married to PW12 Karam Singh aforesaid, a driver in H.R.T.C, in the year 1992. From this marriage, she gave birth to two sons. She was residing at her native place at ‘Siri Naina Devi Ji’ near the old Bus Stand in a separate room. The accused is a real brother of Karam Singh serving in Army. He was residing separately in the vicinity with his wife Anju. It is alleged that whenever the accused used to visit his village during leave, he used to beat, harass and torture the deceased. (iii) In the month of December, 2002, the accused was on leave. On 19.12.2002, Sukh Dei (deceased) committed suicide by putting herself on fire. She was taken C.H.C. Ghawandal. At that time, she was unconscious having 90% burn injuries. PW3 Dr. Naveen Kataria gave first aid and issued M/C Ex.PW3/A. The deceased was referred to Zonal hospital, Bilaspur, but on her way, she breathed her last and her autopsy was conducted by PW8 Dr. N.K. Sankhayan. He preserved her viscera and sent for forensic examination. In his opinion Exts.PW8/A & C, the deceased had died due to cardio respiratory failure as a result of shock due to ante mortem burn injuries. (iv) According to PW1 Shyam Lal, after performing rituals of the deceased, he had gone to immerse the mortuary remains of the deceased at Haridwar and on his return on 22.12.2002, he lodged the FIR Ext.PW1/A under the aforesaid sections, alleging harassment and maltreatment, to her whenever the accused had been visiting his village during leave. (v) Police investigated the case and recorded the statements of the witnesses and finding a case under the aforesaid sections against the accused, prepared the challan and filed in the Court for the trial of the accused. (vi) The accused was accordingly charge-sheeted for the offences aforesaid to which he pleaded not guilty and claimed trial. To prove its case, prosecution examined its witnesses and the accused was also examined under Section 313 of the Code of Criminal Procedure, but his case was that of denial. According to him, the deceased had committed suicide of her own. (vi) The accused was accordingly charge-sheeted for the offences aforesaid to which he pleaded not guilty and claimed trial. To prove its case, prosecution examined its witnesses and the accused was also examined under Section 313 of the Code of Criminal Procedure, but his case was that of denial. According to him, the deceased had committed suicide of her own. Even on that day, he had gone to Jungle to fetch char-wood. On his return, he saw the deceased ablaze. He alongwith other family members had also tried to extinguish fire. In this process, he also got some burn injuries on his hand. He took the deceased to the hospital with the help of the villagers, but she could not be saved. He was also medically examined. After the death of the deceased, her brother Shyam Lal and mother both accused and falsely implicated him in this case. When called upon to enter into his defence, he did not lead any evidence in defence. (vii) Since there was no direct witness of the alleged incident, the learned trial Court did not rely upon the circumstantial evidence led by prosecution and also found inconsistency in its evidence, as such acquitted the accused. 2. Shri M.L. Chauhan, learned Additional Advocate General, duly assisted by Shri Vivek Singh Attri, learned Deputy Advocate General and Shri J.S. Rana, learned Assistant Advocate General, forcefully argued that the statement of the brother and other witnesses were wrongly rejected by the learned trial Court and in case the evidence is read in the right perspective, there are grounds to convert the acquittal into conviction. 3. On the other hand, Shri J.R. Poswal, learned counsel for the accused has supported the findings of acquittal of the learned trial Court and submitted that there was no perversity in the acquittal of the accused. 4. We have examined the evidence on record dispassionately. 5. PW2 Sushila Devi is a neighbour of the deceased. She stated that on 19.12.2002, at about 7.30 a.m., the deceased came weeping to her and asked about the telephone number of Police Post Siri Naina Devi Ji, but she did not supply any number, rather consoled her being a petty matter and not report to police, but she did not level any allegation against the accused. She also stated that she left the place and around 12.30 p.m. and saw smoke emanating from her house. She also stated that she left the place and around 12.30 p.m. and saw smoke emanating from her house. Sensing something wrong, she alongwith other employees of Khadi Gramaudyog went on the spot and found that the deceased had committed the suicide by burning. She did not say why the deceased was enquiring about the number of the Police Post. She also did not say anything about the presence of PW5 Amrati Devi, but, PW5 aforesaid stated that she alongwith PW2 Sushila Devi were sitting inside the room at Siri Naina Devi Ji, when Sukh Dei came weeping to them and on being asked, she stated that she was threatened and abused by the accused and his wife, whereas this fact was not stated by PW2 aforesaid. However, in cross-examination, she stated that she did not know about any dispute. The deceased used to visit her house. She further stated that the deceased used to remain ill at times, they have also been providing medicine to her. Further PW2 Sushila Devi also stated that she had told about the above facts on the same day to the police, which fact is denied by PW10 HC Shiv Kumar, Investigating Officer, who had initially conducted the proceedings under Section 174 of the Code of Criminal Procedure, because at that time, there was no allegation of any cruelty or abetment to commit suicide by the accused. 6. FIR was lodged by PW1 Shyam Lal the brother of deceased after three days of her cremation. He was also confronted with his statement Ext.PW1/A dated 22.12.2012. He did not mention about the abuses or maltreatment as alleged in said report to the police at the earliest i.e. on 19th or 20th December, 2002, when the police was present, but according to him, his statement was recorded on 22.12.2002 when he had returned from Haridwar where he had gone to immerse mortal remains of the deceased, which fact stands falsified by PW12 Karam Singh, the husband of the deceased. In his cross-examination, he categorically stated that only he and his son Harish Kumar and Jai Kumar (his brother-in-law (Sadu) all had gone to Haridwar and except them, no other person had accompanied him, which statement goes contrary to the statement of PW1 Shyam Lal. In his cross-examination, he categorically stated that only he and his son Harish Kumar and Jai Kumar (his brother-in-law (Sadu) all had gone to Haridwar and except them, no other person had accompanied him, which statement goes contrary to the statement of PW1 Shyam Lal. PW12 was also confronted with his statement under Section 161 of the Code of Criminal Procedure with respect to hurling the abuses and giving beating to his wife, which fact did not find mentioned therein. He also stated that there was no dispute of any type of moveable or immoveable property amongst the brothers and all the brothers had been residing separately and also there is no dispute between him and the accused of any property, as such there was no reason for picking up the quarrel with his wife. Even no quarrel and abusing took place between the deceased and the accused. He was present in the hospital on 20.12.2002 and did not disclose anything to police about abusing and harassment by the accused. 7. In the totality of aforesaid circumstances, three days delay in lodging the FIR by PW1 Shyam Lal assumes importance. The prosecution has miserably failed to prove the ingredients of the offence punishable under Section 498-A of the Indian Penal Code that the alleged cruelty of such a nature that it had derived the deceased to commit suicide. 8. Further the accused was also examined on 23.12.2002 by PW3 Dr. Naveen Kataria, who found the burn injuries on his hand. To this effect, MLC Ext.PW3/B was also issued and according to the accused he had tried to extinguish the fire. Thus, the defence version stands probablised. Even we find the abetment to commit suicide against the accused also stands not proved. 9. Legally, a person abets the doing of a thing, who instigates any person to do that thing, or engages with one or more other person or persons in any conspiracy for the doing of that thing, if an act or illegal omission takes place in pursuance of that conspiracy, or the person should have intentionally aided any act or illegal omission. There must be reasonable certainty to incite the consequence, however, having regard to the evidence on record in the instant case, we do not find any case of cruelty in terms of Section 498-A of the Indian Penal Code, nor the abetment to commit suicide punishable under Section 306 of the Indian Penal Code. There is not trustworthy and reliable evidence to bring home the guilt of the accused in accordance with law. The prosecution evidence was rightly held clouded with suspicion and the statement of PW1 Shyam Lal covers the suspicion because of unexplained delay in lodging the FIR. 10. In view the above discussion, we find the findings of the learned trial Court reasonable, based upon the evidence on record, which requires no interference, as such, the appeal filed by the State deserves dismissal, which is accordingly dismissed. 11. The accused is discharged of his bail bonds, entered upon by him at any time during the proceedings of this case. 12. Send down the records.