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Himachal Pradesh High Court · body

2016 DIGILAW 1251 (HP)

Desh Raj v. State of H. P.

2016-07-01

SURESHWAR THAKUR

body2016
JUDGMENT : Sureshwar Thakur, J. The instant appeal stands directed by the accused/convicts against the judgment of the learned Presiding Officer, Fast Track Court, Hamirpur rendered on 16.06.2007 in Sessions Trial 1 of 2007, whereby, he returned findings of conviction against the accused/convicts for theirs committing offences punishable under Sections 498-A and 323 read with Section 34 of the Indian Penal Code (for short “IPC”). The learned trial Court proceeded to hence sentence each of them to undergo rigorous imprisonment for three years for commission of offence punishable under Section 498-A/34 of the IPC besides sentenced each of them to pay a fine of Rs.5,000/-, in default of payment of fine they were sentenced to undergo further rigorous imprisonment for six months. The learned trial Court further proceeded to sentence each of them to undergo rigorous imprisonment for one year and to pay fine of Rs.1000/- each for the commission of offence punishable under Section 323/34 of the IPC, in default of payment of fine they stood sentenced to undergo further rigorous imprisonment for three months. All the sentences were ordered to run concurrently. 2. The facts relevant to decide the instant case are that on 27.4.2006, Medical Officer, CHC, Bhoranj informed the Police Station Bhoranj on telephone that Smt. Shakuntla Devi, the prosecutrix had been admitted in the hospital in an injured condition. Upon this information, a report No.12 was entered in the Police Station and H.C. Pardeep Kumar, No.26 and LHC Karam Chand, No. 190 rushed to CHC, Bhoranj. The aforesaid HC Pardeep Kumar moved an application to Medical Officer for recording the statement of the prosecutrix. However, the prosecutrix was not in a position to make a statement on that day. On 28.4.2006, when the prosecutrix was able to make a statement, she recorded her statement under Section 154, Cr.P.C. before H.C. Pardeep Kumar, NO.26 stating therein that she was married to accused Pawan Kumar about four months back at Village Chandruhi, Tehsil Bhoranj, District Hamirpur, H.P., according to Hindu rites. For about three months after the marriage, accused Pawan Kumar, husband, Desh Raj, father-in-law and Sandhya Devi, motherin- law of the prosecutrix treated her nicely, but thereafter all these accused started taunting her for bringing less dowry. Accused Pawan Kumar levelled the allegations against her that she was not a good looking lady and that he wanted to marry some other woman. Accused Pawan Kumar levelled the allegations against her that she was not a good looking lady and that he wanted to marry some other woman. Accused Pawan Kumar also used to send her out of his bedroom in the night on several occasions. It was further reported that accused Desh Raj and Sandhya Devi used to beat her for bringing less dowry and also tortured her physically and mentally. On 24.4.2016 at about 6.00 a.m., all the accused gave beating to the prosecutrix and a rope was also tied around her neck with intention to kill her, as a result of which, she received injury marks on her neck and other parts of the body. Upon this information, FIR was registered in the police station concerned against the accused. Thereafter, the case was investigated. 3. On conclusion of investigations, into the offences, allegedly committed by the accused, a report under Section 173 of the Code of Criminal Procedure was prepared and filed in the Court concerned. 4. The accused were charged by the learned trial Court for theirs committing offences punishable under Sections 498-A, 307, 323 read with Section 34 of the IPC. In proof of the prosecution case, the prosecution examined 11 witnesses. On conclusion of recording of the prosecution evidence, the statements of the accused under Section 313 of the Code of Criminal Procedure were recorded by the trial Court, in which the accused claimed innocence and pleaded false implication in the case. In their defence, the accused examined two witnesses. 5. On an appraisal of the evidence on record, the learned trial Court, recorded findings of conviction against the accused/appellants herein. 6. The accused/appellants are aggrieved by the judgment of conviction recorded by the learned trial Court. The learned Senior Counsel appearing for the accused/appellants has concertedly and vigorously contended qua the findings of conviction recorded by the learned trial Court standing not based on a proper appreciation of the evidence on record, rather, theirs standing sequelled by gross mis-appreciation of the material on record. Hence, he contends qua the findings of conviction being reversed by this Court in the exercise of its appellate jurisdiction and theirs being replaced by findings of acquittal. 7. Hence, he contends qua the findings of conviction being reversed by this Court in the exercise of its appellate jurisdiction and theirs being replaced by findings of acquittal. 7. On the other hand, the learned Deputy Advocate General has with considerable force and vigour, contended of the findings of conviction recorded by the Courts below standing based on a mature and balanced appreciation of evidence on record and theirs not necessitating interference, rather theirs meriting vindication. 8. This Court with the able assistance of the learned counsel on either side, has, with studied care and incision, evaluated the entire evidence on record. 9. Smt. Shakuntla Devi, the prosecutrix is the wife of co-accused/convict Pawan Kumar. Co-accused/convicts Desh Raj and Sandhya Devi are respectively her father-in-law and mother-in-law. In the ill-fated incident which occurred on 24.4.2006 at the matrimonial home of the prosecutrix, the latter ascribes to co-accused Pawan Kumar besides to Desh Raj and Sandhya Devi an incriminatory role of theirs tying rope Ext.P-1 recovered under memo Ex.PW-1/B around her neck with a mens rea to eliminate her, yet the incriminatory role aforesaid as stands ascribed to accused/convicts Desh Raj and Sandhya Devi, however, for reasons imputed/ascribed herein-after, is infirm. In sequel, co-accused/convict Pawan Kumar alone is to be construed to be the person who tied a rope Ex.P-1 recovered under memo Ex.PW-1/B, around the neck of the prosecutrix in consequence whereto, she, as proved by Ex.PW-5/A, suffered ligature marks on the back and the sides of her neck with a groove of about 1-1/2 c.m., which tailed of upward and laterally on the relevant portion of her neck. PW-5 has on the reverse of Ex.PW5/C underscored therein the factum of the aforesaid injuries being simple yet he has also recorded therein of the injuries sequeled by cord/rope Ex.P-1 standing tied around the neck of the prosecutrix purportedly by accused Pawan Kumar, would assume gravity, if she was hanged for a time longer than the one as stood consumed by accused/convict Pawan Kumar. Furthermore, PW-5 in his examination-in-chief has deposed of the abrasion occurring on the back and the side of the neck of the prosecutrix being not sequelable if a person tries to strangulate herself/himself with a rope. Likewise, PW-11 Dr. Furthermore, PW-5 in his examination-in-chief has deposed of the abrasion occurring on the back and the side of the neck of the prosecutrix being not sequelable if a person tries to strangulate herself/himself with a rope. Likewise, PW-11 Dr. S.K. Soni, who prepared opinion comprised in Ex.PW11/A, has during the course of his examination-in-chief deposed therein of bilateral subconjunctval haemorrhage present in the eyes of the prosecutrix which stand depicted by him in Ex.PW11/A being sequelable by strangulation by user on the neck of the prosecutrix of a strangulatory material/item, inclusive of a rope/cord. He stood subjected to cross-examination by the learned defence counsel. However, the learned defence counsel while holding him to cross-examination has merely suggested to him of the injuries depicted in the MLCs aforesaid being not sequelable, if a person attempts to commit suicide, suggestion whereof stood disaffirmatively responded by PW-11. However, the learned defence counsel did not while continuing to hold him to cross-examination concert to put any further suggestion to PW-11 for belying his disaffirmative answer to his apposite suggestion put to him of injuries occurring around the neck of the prosecutrix being sequelable by hers attempting to commit suicide. Consequently, the defence is to be construed to be acquiescing to the factum of the injuries found occurring around the neck of the prosecutrix being a sequel to rope, Ex.P-1 standing tied around besides tightened around the neck of the prosecutrix/victim. With this Court concluding of the injuries begotten on the neck of the prosecutrix/victim being a sequel to a rope/cord standing tied around besides tightened around the neck of the prosecutrix, the concomitant ensuing inference there from is of with the prosecutrix in her recorded deposition on oath firmly ascribing to accused/convict Pawan Kumar an inculpatory role of his tying rope/cord, Ex.P-1 recovered under memo Ex.PW1/B around her neck, deposition whereof has remained un-belied, as apparently with the learned defence counsel while holding her to cross-examination omitting to put apposite suggestions to PW-1 qua the significant fact of accused/convict Pawan Kumar, who stood deposed by the prosecutrix in her examination-in-chief to be the person, who tied rope/cord around her neck, being neither available at the time contemporaneous to his purportedly tying rope, Ex.P-1 around her neck nor his being the person, who tied or tightened rope around her neck. In aftermath, a conjoint reading of the deposition of PW-11 wherein he repulsed the suggestion put to him by the learned defence counsel while his standing subjected to cross-examination by the defence counsel of the injuries detected around the neck of the prosecutrix being not sequelable by hers attempting to commit suicide vis-a-vis the unshattered testimony of PW-1 constituted in her examination-in-chief wherein she with firmness ascribes an inculpatory role to accused/convict Pawan Kumar of his tying rope, Ex.P-1 around her neck, gives a firm impetus to an inevitable conclusion of the prosecution succeeding to prove the charge against the accused/convict Pawan Kumar. 10. Be that as it may, the learned Senior Counsel appearing for the accused/appellants contends qua the ascription of an inclupatory role by PW-1 to accused/convict Pawan Kumar being a sequel of invention and premeditation, hence, not amenable for credence, given the factum of the occurrence standing taken place on 24.4.2006, whereas, it stood belatedly reported on 28.4.2006 by the informant/victim. He also contends of the aforesaid omission on the part of the informant to promptly report the matter to the police station concerned visits it with a vice of falsity, especially when as unraveled by the deposition of the prosecutrix of hers on 25.4.2006 when her parents visited her at her matrimonial home, hers disclosing the entire episode to them, imperatively enjoined them to promptly report the matter to the police station concerned. However, the aforesaid submission holds no vigour as the effect of delay, if any, stands shred of efficacy, if any, it holds, prominently when for reasons aforestated this Court has firmly concluded of rope, Ex.P-1 recovered under memo Ex.PW1/B being the item or strangulatory material, with user whereof evidently by the accused injuries detected respectively by both PW-5 and PW-11, on or around the neck of the prosecutrix, stood entailed thereon, also the aforesaid apposite formidable conclusion dispels the concert of the defence of the injuries found thereat being a sequel to the prosecutrix attempting to commit suicide. Contrarily, firm credence qua the testimony of PW-1 (the prosecutrix) wherein she ascribes an inculpatory role to accused Pawan Kumar is enjoined to be placed thereon. 11. Contrarily, firm credence qua the testimony of PW-1 (the prosecutrix) wherein she ascribes an inculpatory role to accused Pawan Kumar is enjoined to be placed thereon. 11. Also even if in the F.I.R. lodged qua the occurrence besides in her testimony recorded on oath she ascribes to convicts/accused Desh Raj and Sandhya Devi aforesaid the role of theirs along with convict/accused Pawan Kumar tying a rope around her neck, nonetheless the aforesaid ascription of an inculpatory role to both by the prosecutrix is rendered frail in face of there occurring in her cross examination an admission of on the relevant day and time only her husband and she being present in the room. Consequently, when only both aforesaid were present at the relevant time in the room, the accused/ convict Pawan Kumar alone is to be construed to be the person who tied a rope around her neck whereas with accused/convicts Desh Raj and Sandhya Devi being unavailable thereat, rendered them incapacitated to tie rope around her neck also disabled them to tie its knot around the neck of the prosecutrix, in sequel the ascription qua them by the prosecutrix an inculpatory role of theirs also tying a rope around her neck is rendered emasculated, it standing engendered by sheer concoction. 12. However, with this Court dispelling the efficacy of ascription by the prosecutrix of the aforesaid incriminatory role to co-accused/convicts Desh Raj and Sandhya Devi, the tenacity of the ascription by the prosecutrix of an incriminatory role to them, of theirs respectively ill-treating her, for hers bringing insufficient dowry to her matrimonial home, is to be tested. The imputation of the aforesaid inculpatory role by the prosecutrix to co-accused/convicts aforesaid is nebulous besides vague suffering from an inherent infirmity arising from lack of a precise narration by the prosecutrix qua the time whereat both coaccused/convicts aforesaid subjected her to ill-treatment for hers bringing insufficient dowry to her matrimonial home. The imputation of the aforesaid inculpatory role by the prosecutrix to co-accused/convicts aforesaid is nebulous besides vague suffering from an inherent infirmity arising from lack of a precise narration by the prosecutrix qua the time whereat both coaccused/convicts aforesaid subjected her to ill-treatment for hers bringing insufficient dowry to her matrimonial home. Given the imprecision in timing by the prosecutrix qua the imputations made by her qua co-accused/convicts aforesaid besides omission on her part besides her parents to despite holding knowledge of the accused aforesaid subjecting her to ill-treatment for bringing insufficient dowry to her matrimonial home, report the matter either to the Panchayat or any other authority, cannot but constrain this Court to conclude of the arraying of the aforesaid by the prosecutrix being wholly imaginative, it not standing founded upon any credible evidence. Consequently, when the only surviving purported incriminatory role qua accused/convicts Desh Raj and Sandhya Devi is of theirs ill-treating her on account of hers bringing insufficient dowry to her matrimonial home, incriminatory role whereof stands discounted, the findings of conviction recorded qua them are liable to be reversed. 13. For the foregoing reasons, the instant appeal is partly allowed. Consequently, the judgment of the learned trial Court is modified. In sequel, accused Desh Raj and Sandhya are acquitted of the offences charged. However, the conviction and sentence imposed upon convict/appellant Pawan Kumar by the learned trial Court is affirmed and maintained. Records be sent back forthwith.