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Himachal Pradesh High Court · body

2016 DIGILAW 1043 (HP)

State of H. P. v. Jasbir Singh

2016-06-14

AJAY MOHAN GOEL, SANJAY KAROL

body2016
JUDGMENT : Ajay Mohan Goel, J. 1. The present appeal has been filed against judgment dated 31.03.2008 passed by the Court of learned Additional Sessions Judge, Ghumarwin, Camp at Bilaspur, in Sessions Trial No. 19/7 of 2006/05, vide which, learned trial Court has acquitted the accused for offences under Section 498-A, 306 read with Section 34 I.P.C. 2. The case of the prosecution was that on 25.03.2004 a telephonic message was received from Kanshi Ram, Ex-Pradhan of village Slapper at Police Station Bilaspur at around 11.10., A.M. to the effect that one Pushpa wife of Jasbir Singh resident of village Nagraon had died in suspicious circumstances. On the said basis, Investigating Officer PW-15 Duglu Ram accompanied by other police officials reached village Nagraon, where complainant Bhagat Ram PW-1 recorded his statement Ext.PW1/A under Section 154 Cr.P.C. in which, he stated that he was a resident of village Phufali Julana and had three sons and one daughter. His daughter Pushpa was married on 17.02.2003 with accused Jasbir Singh and she gave birth to a girl child aged four months. One month back Pushpa had visited his house and alleged that her father and mother-in-law as well as husband were making certain demands on account of dowry on the ground that ornaments and television had not been given at the time of ‘Milni’. On this, he told his daughter that he had given everything that was to be given but in future other things shall also be given by him. On 25.03.2004 one Sunder Singh gave a telephonic message at 8.00 A.M. that his daughter was suffering from giddiness and was being taken in a van to Jhandutta and while he was getting ready to come to Jhandutta another telephone came there that his daughter has expired. In these circumstances, he alongwith his wife and Pradhan Kanshi Ram went to village Nagraon. The complainant expressed that his daughter has died due to harassment meted out to her by the accused on account of dowry and previously also she was being tortured by them. 3. On the basis of said report, FIR Ext. PW14/A was registered. Postmortem of the dead body of Pushpa was conducted and as per the postmortem report, the opinion of the Doctor was that cause of the death was asphyxia probably due to chocking. 4. An application Ext. 3. On the basis of said report, FIR Ext. PW14/A was registered. Postmortem of the dead body of Pushpa was conducted and as per the postmortem report, the opinion of the Doctor was that cause of the death was asphyxia probably due to chocking. 4. An application Ext. PW12/B was moved by the police seeking opinion as to how the death of Pushpa Devi had occurred whether due to asphyxia or due to some disease or giddiness and whether the injuries on her face and nose were the outcome offal, on which application PW-12 Dr. N.K. Sankhyan has given his reply Ext.PW12/C with regard to the said queries. The final opinion after going through the report of Chemical Examiner was given by Dr. N.K. Sankhyan PW-12 highlighting that deceased died due to asphyxia after consuming phenyl poison but possibility of asphyxia due to chocking after bleeding from nose due to accidental fall could not be ruled out during epileptic fit. 5. The police carried out investigation and challan was presented in the Court. As a prima facie case was found against the accused, accordingly they were charged for the offences punishable under Sections 498-A and 306 read with Section 34 I.P.C., to which they pleaded not guilty and claimed trial. 6. The learned trial Court on the basis of the material placed on record by the prosecution came to the conclusion that the prosecution could not prove its case beyond reasonable doubt that the accused in furtherance of their common intention had subjected the deceased to cruelty and further the prosecution failed to prove beyond reasonable doubt that the accused in furtherance of their common intention had abetted the commission of suicide by Pushpa Devi. 7. Mr. V.S. Chauhan, learned Additional Advocate General has argued that the judgment of acquittal returned by the learned trial Court is based on flimsy grounds and is a result of mis-appreciation of evidence produced on record by the prosecution. According to him, the prosecution had proved beyond reasonable doubt that the accused were guilty of offences alleged against them and that they had subjected the deceased to cruelty and also abetted the commission of suicide by her. However, all the cogent evidence led in this regard by the prosecution had been overlooked and rejected by the learned trial Court without giving any plausible explanation as to why the case of the prosecution was disbelieved. However, all the cogent evidence led in this regard by the prosecution had been overlooked and rejected by the learned trial Court without giving any plausible explanation as to why the case of the prosecution was disbelieved. Learned Additional Advocate General has argued that the learned trial Court has wrongly discarded the testimony of the prosecution witnesses because in the absence of any proof of enmity there was no occasion before the learned trial Court to discard the version of the official witnesses, who on all counts had proved the case of the prosecution. He has further argued that PW-1, PW-2, PW-4 and PW-6 had supported the case of the prosecution on all the material facts and their statements were trustworthy and inspired confidence to have had convicted the accused for the charges leveled against them. He has further argued that the learned trial Court has not appreciated the provisions of Section 113-A of Evidence Act in view of the fact that the deceased had died just within 13 months of her marriage. On these counts, he submitted that the judgment passed by the learned trial Court was perverse and was liable to be set aside and the accused were liable to be convicted for the offences for which they were charged. 8. On the other hand, Mr. Dheeraj K. Vashista, learned counsel for the respondents has argued that the appeal filed by the State was merit-less and the same deserves out rightly dismissal. He has submitted that a perusal of the judgment passed by the learned trial Court in fact demonstrates that the said Court had taken into consideration the entire evidence of the prosecution and after a minute deliberation of all the aspects of the matter, it had come to the conclusion that the prosecution had failed to prove its case against the accused. Therefore, according to him, the judgment passed by the learned trial Court was the only view possible on the basis of material produced on record by the prosecution and the said judgment calls for no interference. 9. We have heard learned counsel for the parties and have also gone through the records of the case as well as the judgment passed by the learned trial Court. 10. In order to substantiate its case, the prosecution in all examined 15 witnesses. 11. 9. We have heard learned counsel for the parties and have also gone through the records of the case as well as the judgment passed by the learned trial Court. 10. In order to substantiate its case, the prosecution in all examined 15 witnesses. 11. PW-1 Bhagat Ram, father of the deceased, deposed that Pushpa was married to accused Jasbir Singh. His daughter came 2-3 times to him during the period of one year and whenever she came she complained that her in-laws were torturing her for dowry etc. She disclosed that they were demanding a television and gold ornaments and that if such articles are not supplied, she will be eliminated. As per him, last time she disclosed all such facts to them was one month before her death when she had come to them. He also stated that he had given some dowry. He further stated that he was a poor man and was not having much income. He was informed about the death of his daughter by the accused. In his cross-examination, he has admitted that the accused did not demand dowry at the time of marriage. He further stated that his daughter disclosed about the demand of dowry by the accused for the first time after about 15 days of her marriage and thereafter, after two months and third time when she came to the house to deliver her child. He also admitted that he was disclosing about such demands of dowry for the first time in the Court and self stated that he did not disclose it earlier as he thought that the disclosure of the same will spoil the relations. He was confronted with his statement Ext. PW1/A under Section 154 Cr.P.C. wherein it was not recorded that the accused tortured his daughter for demand of dowry and that in case dowry was not given to her then she will be eliminated. 12. PW-2 Rakesh Kumar, brother of deceased Pushpa, stated that Pushpa was married on 16.02.2002 and she used to tell them about her being tortured by her in-laws whenever she used to come. He also deposed that all the accused used to demand dowry and did not allow her to ring her parental family. Her sister used to tell that her mother-in-law demanded golden rings and a neckless of gold, whereas the other accused demanded colour television and washing machine. He also deposed that all the accused used to demand dowry and did not allow her to ring her parental family. Her sister used to tell that her mother-in-law demanded golden rings and a neckless of gold, whereas the other accused demanded colour television and washing machine. He stated that his sister disclosed all such things in his presence when he had come to his house as he resides at the house of his aunt at Swarghat. He further stated that he was told about these facts by his sister when she first visited their house. He also stated that his sister had told his aunt Rattani Devi that the accused used to tell her that the child begotten by her was not of her husband and he was told this fact by his aunt Rattani. He also deposed that on 22.03.2003 he received a telephonic message from the house of his aunt that his sister had fell down. There was no telephone in his house, he contacted a boy named Vijay Kumar through mobile who told that his sister has expired. He has further stated that when he was going back to his house then his parents met him at Jhandutta with the dead body of his sister. He was confronted with his statement made before the police, wherein this fact was not recorded that the accused used to torture his sister for dowry and they did not allow her to ring her parental family. He was further confronted with the statement in which it was not recorded that the accused used to demand colour television, washing machine etc. He was also confronted with his statement in which it was not recorded that his sister had mentioned this fact before him when she had come to their house. 13. PW-3 Madan Singh has deposed that Sunder Singh, his brother-in-law on 25.04.2004 asked for a vehicle saying that Pushpa had fallen down. Thereafter, he sent his vehicle. He has also stated that he has a cloth shop at Jhandutta Bus Stand and when he reached there he noticed that Pushpa was being taken in a vehicle and froth was coming out from her mouth. She was taken to Jhandutta hospital and after some time the Doctor declared her dead. In his cross-examination, he has admitted that Sunder Singh told him that the lady is suffering from epileptic fits. She was taken to Jhandutta hospital and after some time the Doctor declared her dead. In his cross-examination, he has admitted that Sunder Singh told him that the lady is suffering from epileptic fits. He has also admitted the suggestion that Pushpa was taken to hospital one month back in connection with epileptic fit. He also admitted that the accused never tortured Pushpa for dowry and that during her life time Pushpa never told them about she being tortured on account of dowry. Wife of the said witness Madan Singh was the Bua of the deceased. 14. PW-4 Persino Devi is the mother of the deceased and has supported the case of the prosecution. She also deposed that after marriage the deceased gave birth to a daughter. She has stated that the accused used to torture her daughter and some times they used to demand chains, ornaments and television. She stated that he daughter had disclosed all such facts weepingly before them and the accused did not demand anything from them directly. She also stated that the accused did not allow their daughter to talk with them and that her daughter was not allowed to live with them during ‘Kala Mahina’. In her cross-examination, she has mentioned that her daughter has disclosed about the demands of dowry when she had come to them for the third or fourth time. She admitted the suggestion that on the day of death of her daughter they received a telephonic call from Sunder Singh that their daughter had been fallen down in the courtyard and had been taken to hospital at Jhandutta. She was confronted with her statement recorded with the police, wherein this fact was not mentioned that her daughter weepingly told them that the accused demanded gold ornaments and chains and used to torture her. She was also confronted with her statement wherein it was not recorded that her daughter was not allowed to live with them during ‘Kala Mahina’. 15. PW-5 Ram Lal has stated that he visited the house of in-laws of Pushpa on the day of the death of Pushpa and the police was already present there. 16. PW-6 Blabir Singh is the brother of the deceased. He has deposed that he had gone to her sister 7-8 days before her death at her in-laws house. 15. PW-5 Ram Lal has stated that he visited the house of in-laws of Pushpa on the day of the death of Pushpa and the police was already present there. 16. PW-6 Blabir Singh is the brother of the deceased. He has deposed that he had gone to her sister 7-8 days before her death at her in-laws house. At that time, his sister told him that his brother-in-law asked her to consume poison, otherwise he shall kill her. He further stated that he tried to pacify his sister that many things are uttered during anger. He also stated that his sister had also shown him a letter which she disclosed to have been written to her husband by a girl named Sapna Chandel. He also stated that his sister told him that her husband used to say to her that what had her father given to him and that they had plenty of money and they can do anything. He further stated that her sister told him that her father-in-law and mother-in-law also used to say the same thing. This witness was also confronted with his statement given under Section 161 Cr.P.C., wherein the averments made by him in the Court were not so recorded, which clearly suggested that the said witness has now improved his statement, compared to what was earlier recorded by him in the police. 17. The next relevant witness is PW-12 Dr. N.K. Sankhyan. The said witness conducted the postmortem examination of deceased Pushpa Devi. He has also given list of ante-mortem injuries and he has stated that in his opinion, the deceased died due to asphyxia probably due to chocking. He has further deposed that the cause of asphyxia most probably was due to Phenol poisoning, but possibility of asphyxia due to chocking after bleeding from nose due to accidental fall during epileptic fit or vasovagal fit or syncope or shock cannot be ruled out. He has also mentioned that the injuries mentioned in the postmortem report may be sustained due to accidental fall. 18. Before proceeding further, it is pertinent to take note of the fact that in the present case, the accused were charged for the offences under Sections 498-A and 306 read with Section 34 I.P.C. 19. It has been held by the Hon’ble Supreme Court in Sangara Bonia Sreen Vs. 18. Before proceeding further, it is pertinent to take note of the fact that in the present case, the accused were charged for the offences under Sections 498-A and 306 read with Section 34 I.P.C. 19. It has been held by the Hon’ble Supreme Court in Sangara Bonia Sreen Vs. State of Andhra Pradesh, 1997 (5) SCC 348 that the basic ingredients of offence under Section 306 are (a) suicidal death and (b) abetment thereof. In our considered view, in order to attract the ingredients of abetment the intention of the accused to aid or instigate or abet the deceased to commit suicide is necessary. 20. It is a unique legal phenomenon in the Indian Penal Code that the only act, the attempt of which alone will become an offence, is suicide. The person who attempts to commit suicide is guilty of the offence under Section 309 IPC, whereas the person who committed suicide cannot be reached at all. Section 306 renders the person who abets the commission of suicide punishable for which the condition precedent is that, suicide should necessarily have been committed. Thus, the crux of the offence under Section 306 itself is abetment. In other words, if there is no abetment there is no question, the offence under Section 306 comes into play. 21. Section 498A reads as under:- “498A. Husband or relative of husband of a woman subjecting her to cruelty. – Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine. Explanation. – For the purpose of this section, “cruelty” means – (a) Any willful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman; (b) Harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand. 22. 22. Now in the said background, we have to test the veracity of the prosecution witnesses and conclude as to whether it can be satisfactorily that the prosecution has been able to establish beyond any reasonable doubt that the accused are guilty of offences under Sections 498-A and 306 I.P.C. 23. The allegations of the family of the deceased are that Pushpa was harassed by the accused on demand of dowry and this harassment caused to her by the accused intimated her to resort to take extreme step like that of suicide. In other words, the accused abetted the deceased to commit suicide. Both the parents of the deceased have said that the deceased personally told them that the accused were harassing her on account of dowry. PW-1 in his statement in the Court has stated that during the period of one year, his daughter visited them on 2-3 times and whenever she came, she complained that the in-laws were torturing her for dowry etc. However, mother of the deceased PW-4 has stated that her disclosed about the demands of ornaments etc. when she came to them for the third or fourth time. This is a major contradictions in the statements of these two witnesses, who happen to be close relatives of the deceased. Further, a perusal of the statements of these two witnesses as well as the statement of brother will demonstrate that they have not pointed any specific incidence as intimated to them by the deceased with regard to harassment inflicted upon her by the accused on the demand of dowry. The allegations which have been levelled are general in nature and no specific incident of any physical torture etc. has been proved on record by the prosecution. Further, when the statements given by these witnesses are seen viz-a-viz their statements recorded by the police there are major contradictions and improvements in the same. These witnesses have not reconciled as to why there are contradictions in their statements which were earlier recorded by the police and in those which they gave in the Court of law. Brother of the deceased has tried to introduce totally a different story of infidelity. These witnesses have not reconciled as to why there are contradictions in their statements which were earlier recorded by the police and in those which they gave in the Court of law. Brother of the deceased has tried to introduce totally a different story of infidelity. While on one hand it is stated that aunty told him that the husband of the deceased used to say that child born by the deceased was not his child, whereas on the other hand, the story introduced by another brother is that the deceased told him that the accused/husband was having some affair with some other lady. 24. PW-3 who otherwise is related to the deceased has deposed in the Court that on the asking of his brother-in-law Sunder Singh (Jeeja), he sent the vehicle on the fateful day in which the deceased was taken to Jhandutta hospital. In his cross-examination, he has admitted that Sunder Singh had told him that the lady was suffering from epileptic fits and that one month back also Pushpa was taken to hospital in connection with epileptic fit. He has also stated in his cross-examination that accused never tortured Pushpa for dowry nor Pushpa told them about she was being tortured on account of dowry. There is no reason to disbelieve the version of this witness and he cannot be termed as an interested witness. 25. The statement of the Doctor who conducted the postmortem of the deceased also does not help the case of the prosecution because the said Doctor has also stated that the cause of death was asphyxia most probably due to Phenol poisoning, but possibility of asphyxia due to chocking after bleeding from nose due to accidental fall during epileptic fit or syncope or shock cannot be ruled out. He has also stated that the injuries mentioned in the postmortem may be sustained due to accidental fall. 26. In our considered view, said evidentiary material placed on record by the prosecution at the most raises a suspicion that the accused may have harassed the deceased on account of dowry but the prosecution has not been able to prove beyond reasonable doubt that in fact the deceased was actually harassed by the accused who used to demand dowry from her and they further abetted the deceased to commit suicide. 27. 27. In order to substantiate the charge under Section 306 I.P.C. it has to be established that the death by commission of suicide was desired object of the abettors and with that in view they must have instigated, goaded, urged or encouraged the victim in commission of suicide. The instigation may be by provoking or inciting the person to commit suicide and this instigation may be gathered by positives acts done by the abettors or by omission in the doing of a thing. Thus, the acts or omission committed by the abettors immediately before the commission of suicide are vital. In the present case, we are afraid that the prosecution was not able to substantiate any of the above ingredients. The prosecution could not prove any act of provocation or incitement or omission or commission on the part of the accused, vide which they had instigated the deceased to commit suicide. 28. Even the learned trial Court has in detail gone into these aspects of the matter and after detailed appreciation of the material placed on record by the prosecution, it has come to the conclusion that the prosecution has not been able to proved beyond reasonable doubt that Pushpa Devi was in deed subjected to cruelty and harassment by the accused. We see no reason to differ with the findings of the learned trial Court. 29. In view of the discussion made above, therefore, the judgment passed by the learned trial Court is upheld and the present appeal is accordingly dismissed. Bail bonds, if any, furnished by the accused are discharged.