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Himachal Pradesh High Court · body

2016 DIGILAW 1842 (HP)

State of Himachal Pradesh v. Jatinder Paul

2016-09-01

AJAY MOHAN GOEL, SANJAY KAROL

body2016
JUDGMENT : Ajay Mohan Goel, J. By way of present appeal, State has challenged the judgment passed by the Court of learned Additional Sessions Judge, Una, in Sessions Case No. 16 of 2005 dated 12.10.2007, vide which, learned trial Court has acquitted accused therein for commission of offence punishable under Sections 498-A and 306 read with Section 34 I.P.C. 2. The case of the prosecution was that deceased Asha Devi was married to accused Jatinder Paul in November, 2003 as per Hindu rites. The relations between husband and wife remained cordial only for four months and thereafter, accused Swarni Devi and Jatinder Paul started beatings and maltreating the deceased for bringing less dowry. Accused often taunted the deceased in this regard and she used to be compared with the wife of the elder brother of accused Jatinder Paul. As per the parents of the deceased, they had given sufficient dowry at the time of the marriage of the deceased. Further, as per the prosecution, two months before her death, deceased was left at her parental house by the accused on the pretext that the accused could not bear the expenses of the delivery of a child by the deceased. In September, 2004, deceased gave birth to a dead child, however, no one came from the side of the accused to meet the deceased. After 1¼ month, son of the complainant left Asha Devi (deceased) in the house of her in-laws. On 04.12.2004 deceased visited the house of her parents and disclosed that her husband was demanding an amount of Rs.50,000/-. Further, as per prosecution, father of the deceased assured Jatinder Paul that he will arrange the said money after selling his land. On the said assurance, deceased returned back to her in-laws house. On 06.12.2004 one Dev Raj received a telephonic call which was thereafter attended to by the son of complainant Kuldeep and as per said telephonic conversation Asha Devi i.e. the deceased requested Kuldeep that five more suits be arranged, which would be in addition to 7 suits already agreed in order to present the same in the marriage of the sister’s son of accused Swarni Devi. As per the prosecution story, when this conversation took place, deceased was weeping and some one snatched the phone from her and disconnected the same. As per the prosecution story, when this conversation took place, deceased was weeping and some one snatched the phone from her and disconnected the same. On the same night, at about 12.45 A.M., complainant received a message from the police informing her that Asha Devi had died in Civil Hospital Una due to consumption of some poisonous substance. As per the complainant, Asha Devi was beaten and maltreated by the accused persons on the ground of bringing insufficient dowry and it was for this reason that deceased had ended her life by consuming poison. On the basis of complaint which was filed by Smt. Trishla Devi, mother of the deceased, FIR was lodged. 3. After completion of the investigation, challan was presented in the Court and as a prima facie case was found against the accused, accordingly, they were charged for commission of offences punishable under Sections 498-A and 306 read with Section 34 I.P.C., to which they pleaded not guilty and claimed trial. 4. Complainant entered the witness box as PW-1 and she stated in the Court about the factum of the marriage of the deceased with accused Jatinder Kumar in the year 2003. As per this witness, after 2-3 months of the marriage, the deceased was maltreated by her husband as well as her mother-in-law for want of dowry. This witness further deposed that Asha Devi was left by accused Jatinder at her house i.e. house of PW-1 when Asha was expecting a child in the year 2004. She further deposed that Asha Devi gave birth to a dead female child and thereafter no one visited Asha Devi from her in-laws nor any penny was spent by them on the delivery of Asha Devi. As per this witness, after 40 days of the delivery Kuldeep (brother of the deceased) took the deceased to the house of her in-laws. Deceased came to the house of PW-1 on 04.12.2004 and told that her mother-inlaw was demanding Rs.50,000/- and seven suits which were to be given in the marriage of the son of her mother-in-law’s sister. This witness further deposed that as they were unable to meet this demand, her daughter went to her in-laws house. On 06.12.2004 she rang her which phone call was attended by her son Kuldeep and she again told that five more suits were again demanded by her in-laws. This witness further deposed that as they were unable to meet this demand, her daughter went to her in-laws house. On 06.12.2004 she rang her which phone call was attended by her son Kuldeep and she again told that five more suits were again demanded by her in-laws. This witness also stated that her son while hearing the phone felt that someone snatched the phone from the hand of her daughter. She further stated that on 06.12.2004 in the evening they came to know that her daughter had died and phone call was received by them at around 1.00 A.M. in the night. As per this witness, they received telephonic information from the police who told them that her daughter had consumed poison. In her cross-examination, this witness admitted that marriage of the deceased with the accused took place on the mediation of her sister Urmila. She also admitted that at the time of engagement there was no demand of dowry from the side of the in-laws of her daughter. She also admitted that there was no demand of dowry at the time of marriage. She also admitted that the accused (husband of deceased) worked as Halwai at Jallandhar in the marriages. She admitted that after the marriage of her daughter she started living separately from her in-laws. She also admitted it to be correct that as per the custom prevailing, first delivery was to take place in the house of parents of the daughter. She also admitted it to be correct that her daughter was left at her house on her desire i.e. the desire of PW-1. She also admitted it to be correct that her son-in-law had given Rs.20,000/- to her daughter for bearing delivery expenses. She thereafter self stated that her daughter had given the said amount to her and her son-in-law had taken back the said amount after 4-5 days. She admitted it to be correct that on the morning of delivery her son-in-law had brought nurse from Keori Badehra Dispensary to her house. Though she denied the suggestion that her son-in-law remained there for 10-11 days. However, she stated that her son-inlaw remained at her house for one night after delivery. She admitted it to be correct that on the morning of delivery her son-in-law had brought nurse from Keori Badehra Dispensary to her house. Though she denied the suggestion that her son-in-law remained there for 10-11 days. However, she stated that her son-inlaw remained at her house for one night after delivery. This witness was confronted with her statement recorded under Selection 154 Cr.P.C. wherein it was not recorded that the mother-in-law of her daughter had demanded Rs.50,000/- and seven suits for giving the same in the marriage of the son of the sister of the mother-in-law of the deceased. This witness also admitted that after marriage of her daughter, she frequently used to visit her house and PW-1 also used to frequently visit her daughter in the house of her in-laws. 5. Kuldeep Kumar, brother of the deceased, entered the witness box as PW-2. This witness deposed that after the marriage of the deceased with the accused for about 2-3 months the relation of his sister with her in-law remained cordial and thereafter, her in-laws started maltreating her for bringing less dowry. This witness further deposed that on 04.12.2004 his sister came to their house in his absence and when he reached his house, his parents told him that his sister had come and she told that her husband was demanding Rs.50,000/-. He further deposed that on 06.12.2004 in his absence a telephonic call had come in the house of one Yashpal which was attended by said Yashpal. He further stated that thereafter another telephone call was received which was attended by him in which his sister told him that in addition to seven suits already arranged five more suits be arranged and she also asked to arrange money. He also deposed that during the conversation he felt that someone had snatched telephone from his sister and she was weeping. Thereafter, he deposed with regard to the factum of his sister having consumed poison being intimated to them. This witness also stated that information about the death of the deceased was received by that at 12.45 A.M. in the night from the police and on the next day at 6.30 A.M. he alongwith his parents and some other villagers reached at Una hospital and saw dead body of his sister. This witness also stated that information about the death of the deceased was received by that at 12.45 A.M. in the night from the police and on the next day at 6.30 A.M. he alongwith his parents and some other villagers reached at Una hospital and saw dead body of his sister. In his cross-examination, this witness stated that he had not lodged any complaint against the accused to the effect that they were maltreating his sister. He admitted the suggestion that his sister was short tempered. He denied that before delivery his brother-in-law stayed therefore 10-11 days and self stated that he in fact never visited. 6. Yashpal entered the witness box as PW-3 and deposed about the factum of having received telephone calls from Asha Devi on 06.12.2004, However, he expressed his ignorance about the conversation between Asha and Kuldeep. He also deposed that on the fateful night at about 12.45A.M. he had received telephone from the police and police told him that Asha Devi had consumed poison. 7. Dr. N.S. Dogra entered the witness box as PW-4 and deposed that on 07.12.2004 at about 12.10 A.M. Asha Devi was brought to the hospital by her husband with alleged history of consumption of insecticide tablets delphos. The patient was having excessive vomiting and was not responding to verbal commands. This witness further deposed that he issued MLC Ext. PW4/A and the patient was declared dead at 12.40A.M. on the same date. 8. The postmortem of the deceased was conducted by PW-10 Dr. Manoj Kapoor and the postmortem report issued by him is Ext. PW10/A. This witness deposed that in his opinion the death resulted from phosphide poisoning. 9. These are the material witnesses whose testimony will be relevant in order to adjudicate as to whether learned trial Court has erred in acquitting the accused for commission of offences punishable under Sections 498-A and 306 read with Section 34 I.P.C. or not. 10. As we have already stated above, vide its judgment dated 12.10.2007, learned trial Court acquitted the accused by holding that the prosecution has miserably failed to prove the fact that the deceased was ever maltreated or harassed by the accused persons for dowry. 11. We have heard learned counsel for the parties and gone through the records of the case as well as judgment passed by learned trial Court. 12. 11. We have heard learned counsel for the parties and gone through the records of the case as well as judgment passed by learned trial Court. 12. It is settled law that because a married woman commits suicide within seven years of marriage of her marriage, presumption under Section 113-A of the evidence Act would not automatically apply. The mandate of the law is that where a woman commits suicide within seven years of her marriage and it is shown that her husband or any relative of the husband had subjected the deceased to cruelty, then the presumption as defined under Section 498-A I.P.C. may attract having regard to all other circumstances of the case, that such suicide had been abetted by her husband or by such relative of her husband. This presumption according to us is discretionary. As far as the present case is concerned, we have already indicated that the prosecution has not succeeded in showing that there was any dowry demand. 13. The Hon’ble Supreme Court has held in Madivallappa V. Marabad and others Vs. State of Karnataka, (2014) 12 SCC 448 , that in a case where no evidence is adduced to prove any particular act of cruelty or harassment to which the deceased was subjected to and where no complaint was made to the police about any such assault or harassment before the death of the deceased, the conclusion arrived at by the trial Court that the prosecution story was not established beyond reasonable doubt was the correct view. 14. In order to substantiate the charge framed against the accused under Selection 498-A I.P.C. it was incumbent upon the prosecution to have had adduced evidence on record to the effect that the deceased was subjected to cruelty by the accused for want of dowry. In order to prove its case in this regard the prosecution had relied upon the testimony of PW-1 and PW-2. PW-1 is the mother of the deceased and PW-2 is the brother of the deceased. Because both these witnesses are interested witnesses, therefore, their testimony is required to be scrutinized with care and caution. Deposition of these witnesses have already been discussed by us in the above paras of the judgment. 15. PW-1 is the mother of the deceased and PW-2 is the brother of the deceased. Because both these witnesses are interested witnesses, therefore, their testimony is required to be scrutinized with care and caution. Deposition of these witnesses have already been discussed by us in the above paras of the judgment. 15. It is apparent from the testimony of PW-1 that her deposition in the Court was not in consonance with her statement recorded under Section 154 Cr.P.C. In the statement of the complainant recorded under Section 154 Cr.P.C., this witness inter alia stated that when the deceased was expecting a child then the accused left the deceased in the house of the complainant on the pretext that they cannot bear the expenses of the birth of a child. It is further recorded in her statement under Section 154 Cr.P.C. that in September, 2004 deceased gave birth to a dead child and none of the accused came to see the deceased. She further deposed that on 04.12.2004 Asha Devi came to her house and told her and her husband that accused Jatinder Paul was demanding an amount of Rs.50,000/- to which husband of the complainant stated that they will arrange money after selling the land. It is further recorded in her statement that on 06.12.2004 deceased had made telephonic call in the house of Dev Raj which phone call was attended to by Kuldeep in which deceased stated that five more suits were required for the purposes of marriage of cousin of her husband and she was crying on the phone and at that time someone snatched telephone from her hand. When this witness entered the witness box as PW-1 and deposed on oath, then she stated that on 04.12.2004 the deceased had come to her and stated that it was her mother-in-law who was demanding Rs.50,000/- alongwith 7 suits and when they showed inability, her daughter went back. Now a perusal of the cross-examination of this witness demonstrates that she has admitted it to be correct that neither at time of engagement nor at the time of marriage any dowry was demanded by the accused. She has admitted it to be correct that deceased came to her house at the time when she was expecting a child because of the custom and on her asking. She has admitted it to be correct that deceased came to her house at the time when she was expecting a child because of the custom and on her asking. She has also admitted it to be correct that husband of the deceased had paid her an amount of Rs.20,000/- to bear the expenses of the child and on the date of the delivery he had also brought nurse and had also stayed back. This demonstrates that besides improvements which have been made by the said witness in her statement, there are also contradictions in the two statements and in her cross-examination, the defence was able to impinge the credibility of the said witness because the alleged incidents of the cruelty meted out by the accused to the deceased have not been substantiated at all. 16. Similarly, testimony of PW-2 also demonstrates that the factum of Rs.50,000/- having been demanded by the accused from the deceased on 04.12.2004 is hearsay as far as he is concerned. Not only this, in his cross-examination, this witness admitted that his sister was short tempered. Whereas PW-1 admitted in her cross-examination that when deceased gave birth to dead child her husband had brought nurse and had also stayed back for one day, however, PW-2 in his testimony has stated that the husband of the deceased or the accused never visited the deceased when she had given birth to a dead child. 17. In our considered view, the contradictions and inconsistencies in the statements of PW-1 and PW-2, who happen to be the mother and brother of the deceased, raise a serous doubt over the credibility of the story of the prosecution. It is apparent from their testimony that at no stage the factum of deceased being allegedly maltreated by the accused for want of dowry was ever reported by them to anyone. Therefore, the allegation of the deceased having been maltreated and subjected to cruelty by the accused for demand of dowry has not been at all substantiated by the prosecution. 18. 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. 18. 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 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. 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, 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. The prosecution has not been able to establish any intention of the accused to aid or instigate or abet the deceased to commit suicide. Therefore, it cannot be said that the judgment passed by learned Trial Court whereby the accused have been acquitted is either perverse or the acquittal of the accused by the learned Trial Court has amounted to travesty of justice. 19. Therefore, we conclude by holding that prosecution has failed to establish beyond reasonable doubt that the accused were guilty of the offences alleged against them. We have also gone through the judgment passed by the learned trial Court at length. Learned trial Court after due deliberation and due application of mind has come to the conclusion that the prosecution could not bring home the guilt against the accused persons beyond reasonable doubt. We find no reason to disagree with the said conclusion arrived at by learned trial Court. According to us also, accused persons are entitled to the benefit of doubt as the prosecution has failed to prove beyond reasonable doubt the guilt of the accused. We find no reason to disagree with the said conclusion arrived at by learned trial Court. According to us also, accused persons are entitled to the benefit of doubt as the prosecution has failed to prove beyond reasonable doubt the guilt of the accused. Therefore, we uphold the findings recorded by the learned trial Court and the appeal is accordingly dismissed. Bail bonds, if any, furnished by the accused are discharged. 20. We place on record our appreciation for the assistance rendered to the Court by learned Amicus Curiae in the adjudication of the present case.