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2013 DIGILAW 724 (HP)

HARI RAM v. Badari Prashad

2013-08-08

A.M.KHANWILKAR

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JUDGEMENT 1. HEARD counsel for the parties. 2. THIS Revision application is filed by the original complainant, against the judgment of acquittal passed by the Additional Sessions Judge, Ghumarwin in respect of offence punishable under Sections 498A and 306/34 of IPC. The prosecution case, is that, on the night between 16th and 17th February, 2004, one Tara Devi was found hanging on the ceiling fan in her house. The postmortem revealed that she had sustained around 17 injuries on her person. Out of those 17 injuries, injuries No.4 to 17 were not possible by self- infliction. Further, the injuries of contusion were possible by striking with the blunt object and abrasions due to dragging or by hitting some hard surface. After investigation, the charge-sheet was filed and the three accused husband, father- in-law and mother-in-law of Tara Devi were prosecuted for the stated offence. The prosecution examined 11 witnesses. After analyzing the evidence of 11 prosecution witnesses and 6 defence witnesses, the trial Court found that the prosecution had failed to substantiate the charge alleged against the respondents- accused. 3. IN the first place, the trial Court discarded the evidence of PWs-1, 6 and 7 on the ground that they introduced a new case whilst deposing before the Court. In that, in the statement recorded during investigation, Ext.PW-1/A, no disclosure was made by these witnesses that they had received telephone call from Tara Devi on 16th February, 2004 complaining about beating by her husband and in-laws. The Court then proceeded to examine the defence version that the father of deceased Tara Devi was keen that Badri Prashad, husband of Tara Devi, should settle in his house and look after their property. However, as Badari Prashad refused to do so, out of vengeance, Tara Devi reacted aggressively resulting in the incident in question. The trial Court then, after analyzing the statements of PWs 2 and 3, opined that it was apparent that the accused never harassed or tortured Tara Devi, whereas Tara Devi was a quarrelsome lady and was of jealous and obstinate nature. She was annoyed with Badari Prashad having declined to settle down in the house of her parents and also because Badari Prashad was extending financial support and help to his brother and sister- in-law at Jammu. She was annoyed with Badari Prashad having declined to settle down in the house of her parents and also because Badari Prashad was extending financial support and help to his brother and sister- in-law at Jammu. The trial Court then, relying on the statement Ext.DB of Smt.Laxmi Devi (sister of deceased Tara Devi), recorded under Section 161 of Cr.P.C., noted that during the night of 16th February, 2004, Narayanu Ram had requested Laxmi Devi to come to his house as Tara Devi was quarreling with him. That fact is corroborated from the evidence of DW-1 Sohan Lal. Taking overall view of the mater, the trial Court opined that the prosecution failed to bring home the guilt of the accused. This finding recorded by the trial Court is subject matter of challenge in the present revision application. 4. THE principal ground urged before me by the complainant-applicant is that the trial Court has completely glossed over the material evidence, which was available on record disclosing the factum of severe beating given to Tara Devi around 3 to 5 minutes before her death, as is noted in the medical evidence. Moreover, injuries No.4 to 17 were not possible by self-infliction and that contusion was possible only by striking with the blunt object. This has also been completely ignored by the trial Court. Indeed, the trial Court has adverted to the medical evidence of PW-8 Dr.V.K. Mishra but only has mentioned the fact that the cause of death of Tara Devi was antemortem due to hanging leading to asphyxia. According to the applicant, admittedly, the incident happened in the house of Badari Prashad and no one else was present in the house during the night between 16th and 17th February, 2004. Considering the nature of injuries sustained by deceased Tara Devi just before her death due to hanging, it was for the accused to explain those injuries and the circumstances in which Tara Devi died on the night of 16th February, 2004. This material and significant evidence of PW-8 has been completely overlooked by the trial Court, as a result of which the trial Court not only misdirected itself in appreciating the other material prosecution evidence, but also committed manifest error resulting in serious miscarriage of justice. The counsel for the respondents is not in a position to refute the submission so advanced by the counsel for the applicant. The counsel for the respondents is not in a position to refute the submission so advanced by the counsel for the applicant. He is not in a position to point out from the impugned judgment that the trial Court has analyzed the entire medical evidence, muchless in proper perspective. I may, therefore, straightway turn to the evidence of PW-8. After having given brief history, he has mentioned that the postmortem was conducted by him and he noticed 17 injuries sustained by deceased Tara Devi. In his opinion, the time interval between injuries and death was around 3-5 minutes and between death and postmortem was around 24 to 36 hours. If this version is to be accepted as it is, the theory propounded by the defence that the injuries could be caused also because of the fall due to jumping by Tara Devi, from the lintel, stands belied. Moreover, PW-8, in his opinion, has categorically recorded that injuries No.4 to 17 mentioned in the postmortem report were not possible by self- infliction, which means that the same were caused due to assault on Tara Devi. 5. AS regards the injuries of contusion, the witness has categorically stated that the same was possible by striking with a blunt object. In the cross examination, interestingly, the witness was asked about the possibility of injuries in question being caused due to rolling on uneven surface, which suggestion has been denied by PW-8. He has further asserted in the cross examination that while jumping from height, abrasions and fractures are possible. That means, injuries of contusions found on the body of Tara Devi were not possible due to jumping. PW- 6. IN cross examination has clearly stated that it is incorrect to suggest that the injuries could be caused due to self-infliction. 8. In other words, the doctor has stood by his opinion given in the postmortem report. The efficacy of totality of that evidence has not been examined by the trial Court "at all". Surprisingly, the trial Court, in paragraph 19 of the judgment, has not even bothered to reproduce the relevant portion of the said evidence, while referring to the evidence of PW-8. The efficacy of totality of that evidence has not been examined by the trial Court "at all". Surprisingly, the trial Court, in paragraph 19 of the judgment, has not even bothered to reproduce the relevant portion of the said evidence, while referring to the evidence of PW-8. Without examining the efficacy of this crucial medical evidence, I fail to understand as to how the learned trial Judge could straightway record a finding in favour of the defence or hold that the prosecution has failed to substantiate the charge leveled against the accused. The fact that Tara Devi died due to hanging on ceiling fan, taken as it is and is undisputed, that does not absolve the defence to explain the circumstances in which several serious injuries were found on the person of Tara Devi and as per the medical evidence, were inflicted just 3 to 5 minutes before the death of Tara Devi. These are all matters which will have to be examined by the trial Court and depending on the finding to be reached on analysis of the relevant evidence, final conclusion can be reached. In my opinion, the basis on which the trial Court proceeded to acquit the accused persons by simply doubting the evidence of PWs-1, 4, 6 and 7 because of improvements made by them in the evidence is untenable. No positive finding has been recorded by the trial Court that the other evidence given by the said prosecution witnesses was equally exaggerated or having material improvements. No analysis of the other evidence of these witnesses has been done by the trial Court. In my opinion, the trial Court gave benefit to the accused on the basis of conjectures and by ignoring the material substantive evidence available on record. 7. IN the circumstances, the impugned judgment and order of acquittal passed by the trial Court deserves to be quashed and set aside; and instead, the matter is remanded to the trial Court for fresh consideration of the entire matter from the stage of oral arguments. I am surprised that inspite of such infirm reasoning and logic adopted by the trial Court, the State has not chosen to file appeal against acquittal, which it ought to have. 8. BE that as it may, the Revision succeeds on the above terms. I am surprised that inspite of such infirm reasoning and logic adopted by the trial Court, the State has not chosen to file appeal against acquittal, which it ought to have. 8. BE that as it may, the Revision succeeds on the above terms. The parties shall appear before the trial Court (Additional Sessions Judge, Ghumarwin) on 26th August, 2013 at 10.00 a.m., when the concerned trial Court will assign suitable date for hearing oral arguments of the parties and decide the matter afresh. The Public Prosecutor shall represent the State and present oral arguments on behalf of the State. Record and proceedings be returned to the trial Court forthwith and in any case, before 22nd August, 2013, if necessary by special messenger. The revision is disposed of accordingly.