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2016 DIGILAW 2758 (HP)

State of Himachal Pradesh v. Labh Singh

2016-12-29

CHANDER BHUSAN BAROWALIA, DHARAM CHAND CHAUDHARY

body2016
Dharam Chand Chaudhary, J. State of Himachal Pradesh aggrieved by the judgment dated 23.5.2014 passed by learned Additional Sessions Judge, Kullu in Sessions trial No. 7 of 2014(2012) is in appeal before this Court. The complaint is that learned trial Court has failed to appreciate the evidence available on record in its right perspective and acquitted the accused erroneously. The findings of acquittal of the respondent (hereinafter referred to as the ‘accused’) are claimed to be contrary to the evidence as has come on record by way of the testimony of PW1 Chaman Lal, the brother of deceased, her father Shri Bidhu Ram PW4 and sister Smt. Jamuna Rana PW5. They all stated in one voice that the accused had been administering beating to deceased Chinta Mani and it is on account of that she consumed poison and committed suicide. 2. Deceased Chinta Mani had consumed poison on 7.3.2012. She was brought to Regional Hospital, Kullu and as per MLC Ext.PW9/J admitted there at 9:50 A.M. She later on died and information in this regard was given by HHC Ved Ram No. 228 on PAR duty in Regional Hospital, Kullu at 12:45 P.M. Rapat Ext.PW9/A came to be entered in police station. PSI Ashok Kumar (PW9) accompanied by HC Jai Singh and L.C. Ram Kali went to hospital to conduct inquiry in the matter. In the hospital PW1 Chaman Lal, brother of the deceased was present. He made statement Ext.PW1/A and reported that the deceased was married to accused four years prior to her death as per Hindu rites and customary ceremonies. One daughter was born to them out of this wedlock. After the marriage, the accused started beating the deceased under the influence of liquor. He had been torturing her not only physically but mentally also. He was advised not to do so on several occasions but of no avail. About one year prior to her death she had come to the house of PW1 and complained that her husband had been administering beating to her under the influence of liquor. Also that on one occasion he tried to set her on fire and to kill. She lived in his house for 12-13 days. He thereafter discussed the matter with her husband the accused and she was taken by him to the matrimonial home. Also that on one occasion he tried to set her on fire and to kill. She lived in his house for 12-13 days. He thereafter discussed the matter with her husband the accused and she was taken by him to the matrimonial home. The accused allegedly did not mend his behavior and as the deceased was again beaten up by him, therefore, she went to Mohal to the house of her sister PW5 Jamuna Rana. There also she lived for a week and thereafter made to go back to the matrimonial home. It was, therefore, reported by the complainant party that Chinta Mani had committed suicide by consuming poison on account of being tortured mentally as well as physically by her husband, the accused. 3. On the basis of the statement Ext.PW1/A FIR Ext.PW7/B was recorded in Police Station, Sadar Kullu. PW9 had photographed the dead body. The photographs are Ext.P1 to Ext.P8. He also prepared the inquest papers Ext.PW9/B and Ext.PW9/C. He thereafter moved the application Ext.PW9/D to the Medical Officer for conducting post mortem of the dead body. After getting the post mortem conducted, the dead body was handed over to Gaytri Dutt, brother-in-law of the deceased vide memo Ext.PW9/E. Spot map Ext.PW9/F was prepared. One vial ‘Nuvon’ was taken in possession vide recovery memo Ext.PW2/A from the house of the accused. The photographs of the house Ext.P12 and Ext.P13 were also taken by PW9. The house was video graphed vide CD Ext.P14. The statements of the witnesses were recorded. The Chemical Examiner’s report Ext.PW9/G and MLC of the deceased Ext.PW9/J were also collected from the hospital. 4. On completion of the investigation, challan was prepared by PW8 Shri Sher Singh, the then Inspector/SHO, Police Station, Kullu. 5. Learned trial Court on appreciation of the challan and documents annexed therewith has framed charge for the commission of the offence punishable under Sections 498-A and 306 of the Indian Penal Code against the accused. He, however, pleaded not guilty to the charge and claimed trial. Therefore, in order to sustain charge against him, the prosecution has examined nine witnesses in all. Besides Chaman Lal PW1, brother of the deceased, Shri Bidhu Ram PW4 her father and sister PW5 Smt. Jamuna Rana are the material prosecution witnesses. He, however, pleaded not guilty to the charge and claimed trial. Therefore, in order to sustain charge against him, the prosecution has examined nine witnesses in all. Besides Chaman Lal PW1, brother of the deceased, Shri Bidhu Ram PW4 her father and sister PW5 Smt. Jamuna Rana are the material prosecution witnesses. PW2 Sukh Chand is a witness of recovery of vial which was taken in possession vide memo Ext.PW2/A. The remaining prosecution witnesses PW3 HHC Uttam Singh, PW7 SI Om Chand and PW8 Inspector/SHO Sher Singh are police officials who remained associated during the investigation of the case in one way or the other. Pw9 is the Investigating Officer. PW6 is Dr. Rajinder Kohli who has proved the post mortem report Ext.PW6/A. 6. The accused in his statement recorded under Section 313 Cr.P.C. has admitted that the deceased was his legally wedded wife and she consumed poison and expired in Regional Hospital, Kullu on 7.3.2012 at 12.45 P.M. Rest of the prosecution case has, however, been denied by him either being wrong or for want of knowledge. According to him, he is innocent and the witnesses have deposed falsely against him. He however, did not opt for producing any evidence in his defence. 7. Mr. M.A. Khan, learned Additional Advocate General has vehemently argued that cogent, reliable and convincing evidence produced by the prosecution has proved the commission of offence by the accused beyond all reasonable doubt, however, the same is stated to be erroneously brushed aside and the accused acquitted of the charge framed against him on flimsy grounds. 8. On the other hand, Mr. Rahul Singh Verma, Advocate, learned Counsel representing the accused has urged that the present is a case of no offence and as such the accused has rightly been acquitted of the charge framed against him by the learned trial Court. 9. Before coming to the rival submissions and appreciation of the evidence available on record, it is desirable to take note of as to what constitute an offence within the meaning of Section 498-A and 306 of the Indian Penal Code and also the meaning of ‘abetment’ in legal parlance. We can draw support in this regard from the judgment of a Division Bench of this Court in State of H.P. Vs. Pardeep Singh and another, Latest HLJ 2013 (HP) 1431. The relevant text of this judgment is as under: “10. We can draw support in this regard from the judgment of a Division Bench of this Court in State of H.P. Vs. Pardeep Singh and another, Latest HLJ 2013 (HP) 1431. The relevant text of this judgment is as under: “10. At the outset it is desirable 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 to cruelty the wife by her husband or 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.” 10. The Apex Court in Manju Ram Kalita versus State of Assam (2009) 13 SCC 330 has held as under: “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.” 12. 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. 13. In the case in hand, the deceased had committed suicide on 25.5.2008 in her matrimonial home at village Nau- Shehra, District Kangra, H.P. One of the ingredients of the commission of offence under Section 498-A IPC, therefore, stands proved. 13. In the case in hand, the deceased had committed suicide on 25.5.2008 in her matrimonial home at village Nau- Shehra, District Kangra, H.P. 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. 14. 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. 15. ……... It is worthwhile to mention here that in a case of this nature, torture and harassment ordinarily is meted out to the victim in the four walls of the house and such cases mostly depend upon the circumstantial evidence. In the absence of direct evidence, the legislature in its wisdom has enacted Section 113-A of the Indian Evidence Act which provides that if a married woman commits suicide within the period of seven years from the date of marriage and there are allegations that she did so because of being subjected to cruelty either by her husband or relatives of her husband or by both. Having regard to all other circumstances, the Court can presume that she has committed suicide on being abetted by her husband or by such relatives of her husband. The Apex Court in Wazir Chand and another versus State of Haryana (1989) 1 SCC 244 has held that if any person instigates any other person to commit suicide and as a result of such instigation, the other person commits suicide, the person causing the instigation is liable to be punished under Section 306 of the Indian Penal Code. 16. The Apex Court in Wazir Chand and another versus State of Haryana (1989) 1 SCC 244 has held that if any person instigates any other person to commit suicide and as a result of such instigation, the other person commits suicide, the person causing the instigation is liable to be punished under Section 306 of the Indian Penal Code. 16. In a case of suicidal death, the onus to prove that suicide was abetted by the accused alone is on the prosecution and to raise the presumption under Section 113-A of the Evidence Act, one of the ingredients that the deceased was subjected to cruelty is required to be proved first by the prosecution.” 11. The settled legal principles are, therefore, that in order to bring guilt home to the accused for the commission of an offence punishable under Sections 498-A and 306 of the Indian Penal Code evidence to coerce the deceased to convince her parents to meet dowry demand of her husband or his relative and that it is due to such willful conduct of the accused which had driven the deceased to commit suicide is required to be proved by the prosecution. 12. Admittedly, the deceased was married to accused Labh Singh. One female issue was born to her out of this wedlock. She consumed ‘Nubon’ a poisonous substance on 7.3.2012 in the matrimonial home. She was brought to Regional Hospital, Kullu for treatment at 9:50 A.M. She was admitted in the hospital, however, could not be saved and passed away at 12:45 P.M. on that day itself. She, therefore, has died within seven years of her marriage with accused Labh Singh. As per the medical evidence available on record she was carrying 4-5 months old pregnancy at the time of her death. 13. In the statement under Section 154 Cr.P.C. Ext.PW1/A the instances of cruelty on the perusal thereof reads as follow: (i) Accused used to torture the deceased mentally as well as physically and had also been administering beatings to her. (ii) One year prior to commission of suicide by her, she came to the house of her brother the complainant PW1 Chaman Lal at village Chhurla and told that her husband (accused) used to administer beating to her under the influence of liquor. (iii) Also that on one occasion he attempted to set her on fire. 14. (ii) One year prior to commission of suicide by her, she came to the house of her brother the complainant PW1 Chaman Lal at village Chhurla and told that her husband (accused) used to administer beating to her under the influence of liquor. (iii) Also that on one occasion he attempted to set her on fire. 14. In view of the instances of cruelty as aforesaid nothing suggesting has come on record that her husband had maltreated the deceased in the matrimonial home with a view to coerce her parents to meet demand of dowry of the accused. The allegation if believed to be true amount to bear and tears of normal married life. The same do not amount to such willful conduct of the accused which had driven the deceased to commit suicide within the meaning of Section 498-A and 306 of the Indian Penal Code. True it is that her brother Chaman Lal the complainant while in the witness box as PW1 has supported the allegation against the accused in the statement Ext.PW1/A. However, the alleged maltreatment and incident of beatings to the deceased pertains to one year prior to the commission of suicide by her. The so called threatening by the accused to set her on fire is also not an incident i.e. immediately before the commission of suicide by her but disclosed to PW1 during her visit to his house somewhere one year also before the occurrence. In his cross-examination, he tells us that she disclosed the alleged incident of beatings given to her by the accused in the year 2012 i.e. two years prior to commission of suicide by her. He admitted that the matter was not reported either to police nor he ever consulted the elderly placed persons in the village. He, however, had discussed the matter with the accused and his colleague teacher Tej Singh. The deceased had told him that accused threatened to set her on fire about 8-10 days back on her visit to his house i.e. in the year 2010. The deceased had brought to the notice of Jamuna Rana such conduct and behavior of the accused during her visit which according to PW1 was after 4-5 months of her visit to his house, meaning thereby that to Jamuna also the deceased had revealed the incident somewhere in the year 2010 or 2011. The deceased had brought to the notice of Jamuna Rana such conduct and behavior of the accused during her visit which according to PW1 was after 4-5 months of her visit to his house, meaning thereby that to Jamuna also the deceased had revealed the incident somewhere in the year 2010 or 2011. According to Jamuna Rana PW5 the deceased had come to her house somewhere in August and September 2011. Even if the deceased had gone to her house somewhere 6-7 months prior to commission of suicide by her, PW Jamuna Rana has also not made any complaint to anyone including the members of the family of accused against his conduct and behavior. The testimony of PW1 and PW5 lead to the only conclusion that the so called instances of maltreatment and cruelty of the deceased pertain to the period prior to 1-2 years of commission of suicide by her. 15. The present as such is not a case where soon before the death of the deceased she was subjected to cruelty in connection with demand of dowry. In order to bring guilt home to the accused in a case of this nature approximate link between harassment and cruelty in connection with demand of dowry and death of victim resulting out of it should be pleaded and proved. However, in the case in hand, there is no iota of evidence to show that soon before the commission of suicide by the deceased she was treated with cruelty by the accused. The statement of her father Bidhu Ram PW4 is also of no help to the prosecution case for the reason that as per his testimony his deceased daughter had come to his house about two years back and told about she was being maltreated and tortured by the accused. According to him after about one week he made her to understand to return to the matrimonial home. During that visit she allegedly had also informed him qua the accused having attempted to set her on fire and thereby to kill her. However, his statement in cross-examination reveals that he never made any complaint to the police against the accused. No statement that the deceased disclosed setting her on fire by the accused is however made by him before the police. Therefore, by stating so, this witness has improved his earlier version which is not legally permissible. 16. However, his statement in cross-examination reveals that he never made any complaint to the police against the accused. No statement that the deceased disclosed setting her on fire by the accused is however made by him before the police. Therefore, by stating so, this witness has improved his earlier version which is not legally permissible. 16. This alone is the evidence produced by the prosecution to connect the accused in the commission of offence because the remaining prosecution witnesses are police officials who remained associated during investigation of the case in one way or the other. The evidence as has come on record by way of their testimony could have been used as link evidence had the prosecution been otherwise able to establish the involvement of the accused in the commission of offence. 17. The present no doubt is a case where the deceased has committed suicide within seven years of her marriage in the matrimonial home with the accused. However, in the given facts and circumstances as well as the evidence available on record the presumption that it is the accused who abetted the commission of suicide by her cannot be drawn for the reasons that the prosecution has miserably failed to discharge the initial onus upon it. There is again no question of accused having instigated the deceased to commit suicide or abetted the commission of suicide by her within the meaning of Section 107 of the Indian Penal Code. As a matter of fact, the present is a case where nothing suggesting that the deceased was being tortured or harassed by the accused in relation to the demand of dowry or otherwise and the degree of cruelty was so high that she was not able to understand comparison between life and death and in such a state of mind, chosen the pangs of death. True it is that in normal circumstances, no person takes such a drastic step to do away with his/her life that too without there being any cause, however, present is not a case where it can be said that the deceased has committed suicide owing to cruel treatment meted out to her by the accused. 18. In view of what has been said hereinabove, this appeal fails and the same is accordingly dismissed. The personal bond furnished by the accused shall stand cancelled and the surety discharged. 19. 18. In view of what has been said hereinabove, this appeal fails and the same is accordingly dismissed. The personal bond furnished by the accused shall stand cancelled and the surety discharged. 19. Before parting with this judgment, we would be failing in our duty if ignore the facts which otherwise would have been of some help to the investigating agency to unearthen the truth, had the same been taken into consideration and gone into during the course of inquiry, investigation or trial. 20. As per the prosecution case the deceased was found to have consumed poisonous substance early in the morning i.e. 7:45 A.M on 7.3.2012. The reliance in this regard can be placed on the MLC Ext.PW9/J which reveals that the deceased was brought to the Regional Hospital, Kullu for treatment and attended upon by the doctor on duty at 9:50 A.M. As per record the only evidence i.e. rapat Ext.PW9/A the information qua deceased having consumed some poisonous substance and as a result thereof died in the hospital was given at 12:45 P.M. by Ved Ram who allegedly was on PAR duty in the hospital. The MLC reveals that the deceased when brought to hospital was attended upon by Dr. Rajinder Kohli. The first and foremost duty of Dr. Kohli who is PW6 in this case was to have apprised the police of Police Station, Kullu qua the deceased having been brought in serious condition as a case of poisoning to the hospital for treatment. There is no evidence that any such information was given by PW6 Dr. Rajainder Kohli to Kullu police. 21. The information when received at 12:45 P.M. in the Police Station the I.O. PW9 though conducted the investigation, however, did not inquire into this aspect of the matter. He in his cross-examination has admitted that as per the investigation he conducted the deceased was brought to hospital at 9:50A.M. by the accused and other villagers. He neither inquired the matter from those villagers who had brought the deceased to the hospital nor from the Medical Officer who on her arrival in the hospital attended her. It is only the MLC Ext.PW9/J of the deceased was collected by him from the hospital and the other record qua the treatment given to her has not been obtained. 22. Therefore, the doctor on duty i.e. PW6 Dr. It is only the MLC Ext.PW9/J of the deceased was collected by him from the hospital and the other record qua the treatment given to her has not been obtained. 22. Therefore, the doctor on duty i.e. PW6 Dr. Rajinder Kohli prima-facie had not given the intimation to the police of Police Station, Kullu that deceased was brought to the hospital at 9:50 A.M. for treatment in serious condition as the case of poisoning. Likewise the I.O. PW9 had not conducted inquiry nor tried to find out as to what prevented PW6 Dr. Rajinder Kohli to give requisite information to the police. Had the intimation been received by the police well in time the statement of deceased could have possibly been recorded and had she been found fit to make statement may have divulged the circumstances leading to consumption of poison by her and commission of suicide. 23. As per the evidence available on record Sube Ram, the father of the accused was serving in Regional Hospital, Kullu. Therefore, delaying the intimation to the police can also be on account of some foul play or with a view to help the accused. In case the acts attributed to PW6 Dr. Rajinder Kohli and the I.O. PW9 Ashok Kumar are ultimately turned to be true, they not only committed an act of dereliction of duty and rendered themselves liable to be proceeded against departmentally but also of certain offences punishable under the Penal Laws of the Land. Anyhow, before any direction in this regard is passed by us, it is desirable to afford both of them the opportunity of being heard. 24. Being so, issue show cause notice to PW6 Dr. Rajinder Kohli, the then Medical Officer, Regional Hospital, Kullu and PW9 Shri Ashok Kumar, the then PSI Police Station, Kullu calling upon them to appear in this Court on 2.3.2017 in person and show cause why they should not be prosecuted under the Penal Laws of the Land for their act prima facie of omission and why a direction should not be issued to their respective appointing and disciplinary authority to initiate departmental action against them for imposition of penalty. 25. Learned Additional Advocate General to collect the present addresses of both of them and file the same in the Registry within a week.