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2016 DIGILAW 1164 (HP)

State of H. P. v. Tilak Raj

2016-06-24

CHANDER BHUSAN BAROWALIA, DHARAM CHAND CHAUDHARY

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JUDGMENT : Dharam Chand Chaudhary, J. State of Himachal Pradesh has come up in appeal being aggrieved by the judgment dated 7.7.2010, passed by learned Additional Sessions Judge, Fast Track Court, Kangra at Dharamshala, in Sessions Trial No.22/10, whereby both accused (respondent herein) have been acquitted of the charge under Sections 498-A, 306 and 201 read with Section 34 of the Indian Penal Code framed against each of them. 2. In a nut shell the case of the prosecution as disclosed from the record is that Surekha Rani (since deceased) was married to accused Tilak Raj on 2nd November, 2002. Her parents had given dowry to her as per their capacity. Accused Sagro Devi is her mother-in-law. Deceased Surekha Rani, allegedly was treated nicely in the matrimonial home for a period of one year and thereafter both accused started maltreating her at the pretext of dowry. In order to fulfill their demands, PW-1 Raj Kumar, father of the deceased, paid Rs.20,000/- on four different occasions, however, the accused were not satisfied and continued the torturing and maltreatment of the deceased. She was thrown away from the matrimonial home on 3rd September, 2007. She made a call on 2.30 p.m. from nearby PCO on the telephone number of her parents, which was attended to by her mother PW-2 Santosh Kumari. The deceased allegedly told her mother that she was being beaten and tortured by her in-laws and someone should come and take her therefrom. 3. Rampal, the uncle of deceased received a call on telephone from the house of the accused that Surekha had expired. He asked Mukeshwar her brother to call PW-1, her father. PW-1 and PW-2 when reached in the evening at 6.00 p.m. in the house of the accused, the dead body of Surekha was cremated. The police was informed by PW-14 Ashok Kumar, the cousin (maternal uncle’s son) of deceased. 4. The Police swung into action and as per PW-20, the I.O., the police party reached on the spot at 5.30 p.m. At that time the pyre was burning. PW-18 Chain Singh went to cremation ground and taken photographs. The I.O. PW-20 reached thereafter on the spot. He recorded the statement Ex.PW-1/A of Raj Kumar, father of the deceased and prepared the spot map Ex.PW-20/B. He had also taken into possession ash, charcoal and burnt bones from the cremation ground, which was sealed in a container. PW-18 Chain Singh went to cremation ground and taken photographs. The I.O. PW-20 reached thereafter on the spot. He recorded the statement Ex.PW-1/A of Raj Kumar, father of the deceased and prepared the spot map Ex.PW-20/B. He had also taken into possession ash, charcoal and burnt bones from the cremation ground, which was sealed in a container. Two vials of pesticides named ‘Cyper Hit’ and ‘Ground up’ were also taken into possession and sealed in parcel. On the receipt of the chemical examiner’s report and also completion of the investigation challan was filed against both the accused. 5. Learned Trial Judge after taking into consideration the challan and the documents annexed therewith has prima facie found the involvement of the accused persons in the commission of the offence punishable under Sections 498-A, 306 and 201 read with Section 34 of the IPC. Charge against them was, therefore, framed accordingly. 6. The prosecution has examined as many as 20 witnesses. The material prosecution witnesses are Shri Raj Kumar PW-1, the father of the deceased, his wife Santosh Kumari PW-2, PW-3 Smt. Bimla Sharma, aunt of PW-1, the father of deceased, PW-4 Nashbir Singh, working as driver in a factory ‘Healthy Choice’ at Mand Majman, nearby the house of the accused, PW-5 Sunil Kumar, a local shopkeeper running STD booth also, PW-6 Rakesh Kumar, proprietor of a chemical lab being run by him in village Tiyora and the neighbours of accused, PW-7, Smt. Kamlesh Sharma, PW-9 Kaushalya Devi, PW-10 Surjeet Singh, PW-12 Harjeet Singh and PW-13 Roshal Lal. Pw-14 Shri Ashok Kumar is the cousin of the deceased being her maternal uncle’s son. The remaining witness are formal as PW-11 Murli Dhar is a photographer, PW-16 to PW-18 and PW-20 are the police officials, who remained associated during the investigation of the case in one way or the other. PW-19 is Surinder Singh, who is running a private clinic at Mukerian where the deceased was taken for treatment. 7. Learned Trial Judge on appreciation of the evidence has arrived at a conclusion that the prosecution could not prove its case against the accused beyond all reasonable doubt. The accused as such have been given the benefit of doubt and resultantly acquitted of the charge framed against each of them. 8. 7. Learned Trial Judge on appreciation of the evidence has arrived at a conclusion that the prosecution could not prove its case against the accused beyond all reasonable doubt. The accused as such have been given the benefit of doubt and resultantly acquitted of the charge framed against each of them. 8. The judgment under challenge has been assailed on the grounds inter alia that cogent and reliable evidence as has come on record by way of testimony of the prosecution witnesses has erroneously been brushed aside and to the contrary the findings recorded are erroneous and based upon surmises and conjectures. 9. Shri D.S. Nainta, learned Additional Advocate General has vehemently argued that the overwhelming evidence as has come on record by way of the testimony of the prosecution witnesses leads to the only conclusion that the deceased was being tortured and maltreated by her in-laws, the accused at the pretext of dowry and as she has died within five years of her marriage with accused Tilak Raj in the matrimonial home, therefore, it is the accused persons, who had been torturing and maltreating the deceased, hence abetted the commission of suicide by her. 10. On the other hand Shri Ramesh Sharma, Advocate, learned counsel has urged that no instance of cruelty has come on record by way of evidence produced by the prosecution. The evidence rather reveals that the deceased was being looked-after and treated nicely by the accused in the matrimonial home, therefore, according to learned counsel, learned trial Court has not committed any illegality or irregularity while acquitting the accused of the charge framed against each of them. 11. On reappraisal of the evidence and taking into consideration the rival submissions, true it is that Surekha has committed suicide on 3.12.2007 in the matrimonial home within seven years of her marriage with accused Tilak Raj. However, it is the accused alone, who have abetted the commission of suicide by her, is a question, which needs adjudication on reappraisal of the evidence available on record. 12. Before that we deem it appropriate to discuss as to what constitutes the commission of an offence punishable under Sections 498-A and 306 of the Indian Penal Code. However, it is the accused alone, who have abetted the commission of suicide by her, is a question, which needs adjudication on reappraisal of the evidence available on record. 12. Before that we deem it appropriate to discuss as to what constitutes the commission of an offence punishable under Sections 498-A and 306 of the Indian Penal Code. A bare reading of Section 498-A reveals that sine qua non to establish the said offence is subjecting the wife with cruelty by her husband or his relative with a view to coerce her or any person related to her to meet any unlawful demand for any property or valuable security or willful conduct of the husband of such woman or a relative, of such a nature as is likely to drive her to commit suicide or to cause grave injury or danger to life, limb or health. 13. The Apex Court in Manju Ram Kalita versus State of Assam, (2009) 13 SCC 330 has held as under: “21. “Cruelty” for the purpose of Section 498-A IPC is to be established in the context of Section 498-A IPC as it may be different from other statutory provisions. It is to be determined/ inferred by considering the conduct of the man, weighing the gravity or seriousness of his acts and to find out as to whether it is likely to drive the woman to commit suicide, etc. It is to be established that the woman has been subjected to cruelty continuously/persistently or at least in close proximity of time of lodging the complaint. Petty quarrels cannot be termed as “cruelty” to attract the provisions of Section 498-A IPC. Causing mental torture to the extent that it becomes unbearable may be termed as cruelty.” 14. So far as the commission of offence punishable under Section 306 of the Indian Penal Code is concerned, the prosecution is required to prove beyond all reasonable doubt that some person has committed suicide as a result of abetment by the accused. 15. In the case in hand, the deceased had committed suicide on 3.12.2007 in her matrimonial home. One of the ingredients of the commission of offence under Section 498-A IPC, therefore, stands proved. The prosecution, however, is further required to prove that it is the accused alone who had abetted the commission of suicide by the deceased. 16. 15. In the case in hand, the deceased had committed suicide on 3.12.2007 in her matrimonial home. One of the ingredients of the commission of offence under Section 498-A IPC, therefore, stands proved. The prosecution, however, is further required to prove that it is the accused alone who had abetted the commission of suicide by the deceased. 16. Abetment has been defined under Section 107 of the Indian Penal Code. Its simple meaning is that a person abets the doing of a thing who firstly instigates any person to do a thing, or secondly, engages with one or more other person or persons in any conspiracy for doing of that thing, if an act or illegal omission takes place in pursuance of that conspiracy, and in order to doing of that thing, or intentionally aids, by any act or illegal omission, the doing of that thing can be said to have abetted the doing of that thing. 17. Now if coming to the allegations that the deceased was being tortured and maltreated in the matrimonial home at the pretext of demands of dowry and thereby the accused had abetted the commission of suicide by the deceased, no evidence such as the report made to police or Local Gram Panchayat is forthcoming. It is also not the case of the prosecution that the instances when she was tortured, maltreated or beaten at the pretext of demands of dowry, were complained to local authority, Gram Panchayat or the parents of deceased themselves intervened. No evidence has also come on record suggesting that the deceased was ever thrown out from the matrimonial home by the accused. The father of the deceased PW-1 has rather himself admitted while in the witness box that at the time of marriage the accused persons had not demanded any dowry. No doubt, he tells us that Rs.20,000/- was paid by him to the accused on four different occasions, however, in whose presence, and that the said amount was paid by him to fulfill the demands of the accused for dowry, no corroborative evidence has come on record. His version that the money was withdrawn by him from the bank is also not substantiated on record because the prosecution has failed to produce the evidence qua withdrawal of money by this witness from his account. 18. His version that the money was withdrawn by him from the bank is also not substantiated on record because the prosecution has failed to produce the evidence qua withdrawal of money by this witness from his account. 18. PW-1 and PW-2 have not said anything while in the witness-box as to when the deceased was treated with cruelty by the accused at the pretext of dowry. The version of PW-2 that the deceased informed her over telephone on the fateful day about she was thrown out by the accused from matrimonial home is not proved because the prosecution has failed to establish that the deceased has made call to her parents on their telephone from the STD booth installed in the shop of PW-5 Sunil Kumar. Sunil Kumar has turned hostile to the prosecution as according to him neither the deceased came to his STD booth nor made any call therefrom. The best evidence in this behalf would have been the calls detail. Had any call been made by the deceased from this booth to her parents on their telephone, would have easily proved from the detail of calls obtained from the office of BSNL. 19. True it is that the accused took a hasty decision to cremate the dead body even without waiting for PW-1 and PW-2, her parents and other near relations, however, this alone also cannot be made basis to record the findings of conviction against the accused particularly when as per the version of her cousin Ashok Kumar PW-14, one Dharam Pal and Charan Dass were present at the time of cremation of the dead body. Not only this, but the sister of deceased Urmila, working in ‘Healthy Choice Factory’ situated nearby to the house of the accused was called to the house of the accused by PW-12, Harjeet Singh, at about 2.30 p.m. Therefore, the sister of the deceased was also present there well before the dead body was taken for cremation. 20. Dharam Pal and Charan Dass are uncles of the deceased being brother and brother-in-law of her father as has come in the statement of the said witness. Before taking the dead body for cremation, as per version of PW-9, it was got washed by Santosh Kumari and Satish Kumari. 20. Dharam Pal and Charan Dass are uncles of the deceased being brother and brother-in-law of her father as has come in the statement of the said witness. Before taking the dead body for cremation, as per version of PW-9, it was got washed by Santosh Kumari and Satish Kumari. According to PW-9, there was no injury on the dead body as she was also present at the relevant time in the house of the accused. The neighbours of the accused, PW-9 Kaushalya Devi, PW-10 Surjeet Singh and PW-7 Kamlesh Sharma, have stated that the deceased was being maintained, looked-after and treated nicely by the accused. No doubt, it is canvassed that neither sister of the deceased nor Dharam Pal and Charan Dass were present at the time of cremation of the deceased, however, without any substance as it was for the sister of the deceased and aforesaid Dharam Pal and Charan Dass to have thrown some light qua this aspect of the matter, but the prosecution did not associate them in the investigation of the case nor cited them as witnesses. Therefore an adverse inference has to be drawn against the prosecution and it would not be improper to conclude that they were present in the house of the accused at the time when dead body was taken for cremation. 21. Now coming to the presumption under Section 113-A of the Evidence Act, since prosecution has failed to discharge initial burden on it, therefore, the presumption that it is the accused, who alone abetted the commission of suicide by the deceased, cannot be drawn. 22. Therefore, examining this case from any angle, the only irresistible conclusion would be that the prosecution has failed to prove its case against the accused beyond all reasonable doubt. They have therefore, been rightly acquitted by learned trial Judge. Consequently, the impugned judgment warrants no interference by this Court and the same is accordingly affirmed. 23. For all the reasons hereinabove, the present appeal fails and the same is accordingly dismissed. The personal bonds furnished by both the accused shall stand cancelled and the sureties discharged.