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Himachal Pradesh High Court · body

2016 DIGILAW 627 (HP)

State of H. P. v. Baldev Singh

2016-05-02

AJAY MOHAN GOEL, SANJAY KAROL

body2016
JUDGMENT : Ajay Mohan Goel, J. This appeal has been filed by the State against judgment passed by the learned Additional Sessions Judge, Fast Track Court, Kangra at Dharamshala, in S.C. No. 14-C/VII/07 dated 06.10.2007, vide which, learned trial Court has acquitted the accused therein for offences under Section 498-A and 306 read with Section 34 I.P.C. 2. The case of the prosecution was that Lalita Devi was married to accused Satnam Singh on 30.04.2005 as per Hindu rites and ceremonies. Immediately after marriage, all the accused started taunting and harassing the deceased on the ground that she had brought less dowry and the ornaments which she had brought were small in size. The accused used to demand scooter and money and used to taunt the deceased on this account and further used to say that at the time of the performance of the marriage of her sister-in-law Pooja (Accused No. 4), the deceased should provide good ornaments of big size to her. Accused Baldev Singh (A-1) is the father-in-law of the deceased, accused Satnam Singh (A-2) is the husband of the deceased, accused Kaushalya Devi (A-3) is the mother-in-law of the deceased and accused Pooja (A-4) is the sister-in-law of the deceased. Further, the case of the prosecution was that 5 months after the marriage of the deceased when she visited her parents she told them that she was being ill-treated by all the accused who were demanding dowry and were taunting her. On this, her father visited the house of the accused and advised them not to do so. He was assured by all the accused that such things shall not be repeated in future. However, the accused continued to do so. Lalita, therefore, again told her parents as well as her brother that the accused kept on taunting her and she also used to complain that it had become very difficult for her to reside with the accused. Ultimately Lalita consumed phosphide on the fateful day i.e. 23.05.2006. She was immediately rushed to S.D.H. Dehra, from where she was referred to Zonal Hospital Dharamshala. Her father opted to take her to C.M.C. Ludhiana instead of Dharamshala but while on the way to Ludhiana, the deceased breathed her last when they reached near Mubarakpur. Following this, the body was taken back and postmortem was conducted and the statement of the father of the deceased was recorded. Her father opted to take her to C.M.C. Ludhiana instead of Dharamshala but while on the way to Ludhiana, the deceased breathed her last when they reached near Mubarakpur. Following this, the body was taken back and postmortem was conducted and the statement of the father of the deceased was recorded. Investigation was conducted and it was found that the accused used to treat the deceased with cruelty and deceased was taunted and humiliated on account of which she consumed phosphide resulting in her death. Police prepared the challan and after complying with the provisions of Section 207 Cr.P.C., the learned Judicial Magistrate committed the case for trial to the Court of learned Sessions Judge, Kangra at Dharamshala, which case was thereafter assigned to the Court of learned Additional Sessions Judge, Fast Track Court, Kangra at Dharamshala. 3. In order to prove its case, the prosecution examined 10 witnesses. PW-1 Yudhvir is the father of the deceased. PW-2 Kaushalya Devi is the mother of the deceased. PW-3 Satnam Singh is the brother of the deceased. PW-4 Rajani Devi was Pradhan of Gram Panchayat Kaloha. PW-5 Dr. Jitender Sexana conducted postmortem of deceased Lata Devi. PW-6 H.C. Thakaru Ram was posted as MHC in Police Station Jawalamukhi with whom the case property was deposited in the Malkhana. PW-7 H.C. Ravi Kumar was posted in Police Station Jawalamukhi and FIR was registered by him. PW-8 S.I. Ranjeet Singh conducted partial investigation in the case. PW-9 ASI Sansar Chand was posted as Investigating Officer in Police Station Jawalamukhi. PW-10 S.I. Surinder Thakur had prepared the challan and submitted it in the Court. 4. The accused were acquitted by the learned trial Court by holding that the prosecution has failed to establish that the deceased was ill-treated, taunted or meted out with cruelty and hence the benefit of doubt has to be extended to the accused. 5. Aggrieved by the judgment passed by the learned trial Court, the State has filed the present appeal. 6. We have heard the learned counsels for the parties and have also gone through the record of the case. 7. Learned Additional Advocate General has strenuously argued that the judgment passed by learned trial Court is erroneous and liable to be set aside because the conclusion arrived at by the learned trial Court that the prosecution had not established its case beyond reasonable doubt was incorrect. 7. Learned Additional Advocate General has strenuously argued that the judgment passed by learned trial Court is erroneous and liable to be set aside because the conclusion arrived at by the learned trial Court that the prosecution had not established its case beyond reasonable doubt was incorrect. According to him, the prosecution had successfully proved its case beyond any reasonable doubt and in this view of the matter, the acquittal of the accused persons by the learned trial Court is totally unwarranted. He has further argued that the evidence of the prosecution has not been appreciated in proper perspective by the learned trial Court. The reasonings of the learned trial Court are totally unsustainable and there was no occasion for the learned trial to have had discarded the well reasoned and consistent testimony of the prosecution witnesses on material points. He has further argued that in the absence of any proof of enmity the learned trial Court has gravely erred in discarding the testimony of the prosecution witnesses. As per him, the learned trial Court has in fact miserably failed to appreciate the statements of PW-1, PW-2 and PW-3, who had clearly proved that the deceased was subjected to cruelty by the accused. He stressed that the learned trial Court has not appreciated the factum of Lalita dying within 7 years of her marriage on account of cruelty meted to her by the accused as she was married on 30.04.2005 with accused No. 2, whereas she died on 23.05.2006 and her death was not natural. 8. On the other hand, learned counsel for the respondents has argued that the judgment passed by the learned trial Court is a well reasoned judgment, which warrants no interference. He has submitted that the conclusion arrived at by the learned trial Court is correct and the only conclusion which could have been arrived on the basis of the material produced on record by the prosecution. He strenuously argued that the accused were not guilty of the offences alleged against them and the learned trial Court has acquitted them by giving them benefit of doubt after appreciating all aspects of the matter and in this view, the judgment of the learned trial Court does not call for any interference. 9. PW-1 Yudhvir has stated that his daughter was married to accused Satnam on 30.04.2005. 9. PW-1 Yudhvir has stated that his daughter was married to accused Satnam on 30.04.2005. When she visited him after 4-5 months of her marriage, she told him that the accused ill-treated her and harassed her. Accused claimed that she had brought less dowry and they also demanded a scooter. Her sister-in-law used to say that small ornaments have been given and when her marriage will be conducted, she be given better ornaments. The accused used to taunt her on every occasion. He visited house of the accused and advised them not to ill-treat his daughter. Despite the assurance given by the accused, the condition remained the same. He visited the house of accused on 21.05.2006 and on inquiry, accused Satnam told him that he is on leave uptill 24th. His daughter told him that the accused were pressing hard demanding a scooter and that she was being badly humiliated. PW-1 has also stated that “She also told that they had only one son and they wanted to conduct the marriage in high profile and nothing has been given in dowry. They also used to say that the accused groom being in service would have been married at a good place and better dowry could have been brought. Again the accused were advised not to do so. Again they assured that those things would not be repeated. My daughter had told me that she is not in position to tolerate the ill-treatment and humiliation: On account of the assurance given by the accused I told my daughter that thereafter she would have no problem. While seeing off me accused Satnam asked me to provide him a scooter. On 23rd of May 2006 I received information telephonically that my daughter had consumed poison.” He has further mentioned that he immediately rushed to the house of the accused and found that her daughter had been taken for treatment to CHC Dehra. Accordingly, he proceeded to Dehra alongwith his family members. From there, his daughter was referred to Zonal Hospital Dharamshala. However, on account of their being strike at Dharamshala, they opted to go to CMC Ludhiana but while on route to Ludhiana, his daughter expired at Mubarakpur. He had further deposed that his daughter consumed poison resulting into her death on account of cruelty and ill-treatment by the accused. From there, his daughter was referred to Zonal Hospital Dharamshala. However, on account of their being strike at Dharamshala, they opted to go to CMC Ludhiana but while on route to Ludhiana, his daughter expired at Mubarakpur. He had further deposed that his daughter consumed poison resulting into her death on account of cruelty and ill-treatment by the accused. In his cross-examination, he has denied the suggestion that his daughter used to say that she wanted to accompany her husband to the place of his posting and that her daughter used to say that in the house of in-laws, she was not getting the facilities which were available in the house of her parents. He has also denied the suggestion that he has become inimical towards the accused on account of untimely death of his daughter and had managed a false case against the accused on account of his being in police. 10. PW-2 Kaushalya Devi, mother of the deceased, has also stated that after 4-5 months of her marriage when the deceased visited them, she told them that the accused used to ill-treat her. The deceased had told that all the accused used to taunt her qua the quality of ornaments and also used to say that she had brought less dowry. She has further deposed that the accused did not permit the deceased to talk with them on mobile. She has further stated that whenever the deceased used to visit them she was always accompanied by her sister-in- law, who never permitted the deceased to talk with them independently. Once when her daughter had come, she was telephonically asked next day by her in-laws to return. The deceased stated while weeping that she can go back only if an amount of Rs.25,000/- is given to her. But she told the deceased that she was not having Rs.25,000/- and would ask her father to manage. The mother has further stated she provided an amount of Rs.10,000/-. She has also deposed that her husband went twice to the house of the accused to advise them. On 21.05.2006, she had accompanied her husband to the house of the accused and advised the accused, who assured that they would behave properly with the deceased. She has further deposed that accused Satnam told that he would leave for his job on 24th. Accused Satnam asked for scooter. On 21.05.2006, she had accompanied her husband to the house of the accused and advised the accused, who assured that they would behave properly with the deceased. She has further deposed that accused Satnam told that he would leave for his job on 24th. Accused Satnam asked for scooter. She has also deposed that “My daughter had told that she was being meet cruelty by the accused and she is behaved like an animal. We have stated noting to anyone. On 23rd of May the sister-in-law told that her Bhabhi was not well. When we reached at their house by that time my daughter had been taken to Dehra Hospital. On inquiry I was told by her that her brother had left for his job”. She has further deposed that from Dehra her daughter was referred to Dharamshala but they preferred to take her to CMC Ludhiana. However, on the way to Ludhiana, her daughter expired. She has also stated that her daughter used to tell her that the accused claimed to be under debt and, therefore, they used to demand money. In her cross-examination, she has admitted that the marriage was conducted at the instance of her father-in-law and that they were more prosperous than the accused. She has also admitted that her daughter used to tell that they used to go to fields and also work for the cattle. She has also admitted that her daughter used to say that she had to go in open to answer the call of nature and there was no toilet in the house of her in-laws. She has also admitted that her daughter used to tell that she had never done any work in her life and now she had to do the same at her in-laws. He has denied the suggestion that when they visited her on 21st the deceased asked Satnam to take her with him to the place of his posting. She has denied the suggestion that on 23rd when Satnam left for his job, their daughter took poison. She has stated that at the relevant time, Satnam was at home. She has further denied the suggestion that their daughter never told them that the accused taunted her for less dowry or they used to demand dowry. She has denied the suggestion that on 23rd when Satnam left for his job, their daughter took poison. She has stated that at the relevant time, Satnam was at home. She has further denied the suggestion that their daughter never told them that the accused taunted her for less dowry or they used to demand dowry. She has also denied the suggestion that her daughter was never asked for Rs.25,000/- or that she has not given her Rs.10,000/-. She has further denied the suggestion that on 21.05.2006 they had not gone to the house of the in-laws of the deceased to advise the accused but had gone there to ask Satnam to take their daughter alongwith him. She has further denied that her daughter committed suicide because she was not getting those facilities after marriage, which she was availing prior to her marriage, due to the poverty of the accused. 11. PW-3 Satnam Singh, who is the brother of the deceased has deposed that the deceased informed that her sister-in-law used to say that her Bhabhi had brought small ornaments and used to ask her mother to provide better ornaments when she is married. The accused never permitted the deceased to talk with them independently. He has also deposed that on the occasion of Baat Mokh on 14.05.2005 when he was returning, he was told by the mother-in-law of the deceased that thereafter he would have to come only once and this he realized only after the death of his sister. All the accused used to ill-treat his sister and demanded scooter. Whenever the deceased visited them she was accompanied by her sister-in-law accused Pooja and his sister used to tell that she has not spent even a single day peacefully after her marriage. She committed suicide on account of ill-treatment given to her by the accused. In his cross-examination, he has admitted that his mother used to tell him that the deceased used to say that the facilities which were available at her house were not available in the house of in-laws. However, he has denied the suggestion that his sister remained unhappy on account of the poverty of the accused. He has self stated that the accused were not poor. 12. PW-4 Rajani Devi, Pradhan Gram Panchayat Kaloha has deposed that she knew the deceased as well as the accused. However, he has denied the suggestion that his sister remained unhappy on account of the poverty of the accused. He has self stated that the accused were not poor. 12. PW-4 Rajani Devi, Pradhan Gram Panchayat Kaloha has deposed that she knew the deceased as well as the accused. She stated that she never visited Sard Bami to resolve some dispute neither she received any complaint about the ill-treatment of the deceased nor she heard anything in this regard from any one. She has denied that deceased told her on her inquiry that her husband administered her beatings and other accused ill-treated her. 13. PW-5 Dr. Jitender Sexana has conducted the postmortem of deceased Lalita Devi. He has stated that in his opinion the deceased died due to shock and as per the report of F.S.L. Junga, there was indication of presence of phosphoid poison in stomach, small and large intestine and liver, spleen and kidney and hence, in view of the above report, the cause of death was phosphoide poisoning. 14. Before proceeding any further, it is relevant to take note of the fact that here is a case which admittedly is of unnatural death and the death has taken place within 7 years of the marriage of the deceased. Section 113-B of the Evidence Act, 1872 reads as under:- “113-B. Presumption as to dowry death. - When the question is whether a person has committed the dowry death of a woman, and it is shown that soon before her death such woman has been subjected by such person to cruelty or harassment for, or in connection with, any demand for dowry, the court shall presume that such person had caused the dowry death. Section 304-B of the IPC reads as under:- “304-B. Dowry death. – (1) Where the death of a woman is caused by any burns or bodily injury or occurs otherwise than under normal circumstances within seven years of her marriage and it is shown that soon before her death she was subjected to cruelty or harassment by her husband or any relative of her husband for, or in connection with, any demand for dowry, such death shall be called 'dowry death', and such husband or relative shall be deemed to have caused her death.” 15. Thus, it is evident that for the purposes contemplated in Section 113-B of the Evidence Act 1872 and Section 304-B I.P.C., to spring into action, it is necessary to demonstrate that cruelty or harassment was caused soon before the death. Therefore, the interpretation of the words “soon before” assumes great significance and importance and these words have to be interpreted keeping in view the facts and circumstances of each case. The question obviously will be how “soon before” her death such woman was subjected by the accused to cruelty or harassment for or in connection with demand for dowry. The cruelty or harassment will differ from case to case and it will obviously be relating to the mindset of people which will also vary from person to person. Besides cruelty being both mental and/or physical it can also be verbal or emotional. 16. The Hon’ble Supreme Court in Surinder Singh Vs. State of Haryana, (2014) 4 Supreme Court Cases 129, has held as under:- “17. Thus, the words 'soon before' appear in Section 113B of the Indian Evidence Act, 1872 and also in Section 304B of the IPC. For the presumptions contemplated under these Sections to spring into action, it is necessary to show that the cruelty or harassment was caused soon before the death. The interpretation of the words 'soon before' is, therefore, important. The question is how 'soon before'? This would obviously depend on facts and circumstances of each case. The cruelty or harassment differs from case to case. It relates to the mindset of people which varies from person to person. Cruelty can be mental or it can be physical. Mental cruelty is also of different shades. It can be verbal or emotional like insulting or ridiculing or humiliating a woman. It can be giving threats of injury to her or her near and dear ones. It can be depriving her of economic resources or essential amenities of life. It can be putting restraints on her movements. It can be not allowing her to talk to the outside world. The list is illustrative and not exhaustive. Physical cruelty could be actual beating or causing pain and harm to the person of a woman. Every such instance of cruelty and related harassment has a different impact on the mind of a woman. Some instances may be so grave as to have a lasting impact on a woman. The list is illustrative and not exhaustive. Physical cruelty could be actual beating or causing pain and harm to the person of a woman. Every such instance of cruelty and related harassment has a different impact on the mind of a woman. Some instances may be so grave as to have a lasting impact on a woman. Some instances which degrade her dignity may remain etched in her memory for a long time. Therefore, 'soon before' is a relative term. In matters of emotions we cannot have fixed formulae. The time-lag may differ from case to case. This must be kept in mind while examining each case of dowry death. 17. In the present case, the marriage of the deceased was solemnized on 30.04.2005 and the death of the deceased has taken place on 23.05.2006. It is clearly proved by the Medical Officer that the death was caused due to poisoning. Thus, it was unnatural death and death has taken place within seven years of marriage and presumption of dowry death will be applicable. However, merely because the death has taken place within seven years from the date of marriage of the deceased, this does not mean that the presumption as contemplated in Section 113-A of the Evidence Act will not have to be substantiated by the prosecution by placing on record cogent and reliable material. 18. In this case, there are material facts which cannot be ignored. PW-1, PW-2 and PW-3 have maintained that the deceased used to complain of her being ill-treated by the accused after about 4-5 months of the marriage. PW-1, father of the deceased, was in police. Despite this, no complaint was made by any of the family members of the deceased or the deceased at any time with regard to her being ill-treated by the accused or the demand of dowry being raised by the accused. Further, no complaint has been made to the Panchayat or police personnel about the alleged ill-treatment being meted out to the deceased for want of dowry. Nothing has been brought on record by the prosecution to show that any demand was made by the accused as alleged. Further, no complaint has been made to the Panchayat or police personnel about the alleged ill-treatment being meted out to the deceased for want of dowry. Nothing has been brought on record by the prosecution to show that any demand was made by the accused as alleged. There is no independent witness to corroborate the version of the prsoeuction.PW-4 Rajani Devi, Pradhan of Gram Panchayat Kaloha in her deposition has on the other hand stated that she never received any complaint about any ill-treatment being meted out to the deceased nor she had heard anything from anyone in this regard. She has denied the suggestion that Lalita had told her that her husband used to beat her and the other accused also used to ill-treat her. Besides this, there are contradictions in the statements of PW-1, PW-2 and PW-3 which belie their trustworthiness. PW-2 in her statement has mentioned that on one occasion when the deceased had come to their house, her in-laws telephonically asked her to come back and she started weeping and on enquiry, revealed that her in-laws were demanding Rs.25,000/-. The deceased was paid an amount of Rs.10,000/- by her. However, this fact does not find any mention either in the statement of PW-1 recorded in the Court or in the statement made by him under Section 154 Cr.P.C. PW-1 has stated that on 23.05.2006, he received information telephonically that his daughter had consumed poison. However, PW-2 has deposed that on 23rd of May sister-in-law of the deceased had told her that Bhabhi was not well. Further, whereas PW-1 has mentioned that when his daughter was referred from CHC Dehra to Zonal Hospital Dharamshala, they opted for CMC Ludhiana, because there was strike at Dharamshala. However, PW-2 has stated that from Dehra, her daughter was referred to Dharamshala but they preferred to take her to CMC Ludhiana. There is no mention in the statement of PW-1 about his daughter being accompanied by her sister-in-law on her visits to their house. 19. A further perusal of the statements of these witnesses will reveal that no specific incident of beating or demand of dowry has been made by them. On the other hand, they have not denied that the deceased used to say that she was not having those facilities in the house of her in-laws which she used to avail in her parents house. On the other hand, they have not denied that the deceased used to say that she was not having those facilities in the house of her in-laws which she used to avail in her parents house. PW-4 Rajani Devi, who was the Pradhan of Gram Panchayat Kaloha was declared hostile by the prosecution. However, in her cross-examination, the prosecution could not elucidate anything material. 20. On the other hand, a perusal of the statements of the accused recorded under Section 313 Cr.P.C., will reveal that they have mentioned in unison that witnesses have deposed against them due to enmity because the marriage of the deceased was conducted at the instance of her grand-father and the accused were not in a position to provide the comforts which the deceased was having at her parental house on account of which she used to remain under tension. She was unable to work in the fields and used to remain unhappy on that account and also insisted that she wanted to go along with her husband at his station of posting. She was advised on 21.05.2016 by her parents that she be taken to the place of the posting by Satnam. However, when Satnam left on 23.05.2006 to join his duties, she consumed poison. 21. Brother of the deceased PW-3 has been confronted with his statement recorded under Section 161 Cr.P.C., in which he has not mentioned that the accused used to demand dowry from his sister or that her parents used to advise the accused or that the accused used to demand scooter. 22. In our view, the credibility of the said witnesses i.e. PW-1, PW-2 and PW-3 has been impeached in view of the inconsistencies in the same. Accordingly, these depositions cannot be said to be trustworthy so as to be sufficient to prove the guilt of the accused. 23. In our view, 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. Accordingly, these depositions cannot be said to be trustworthy so as to be sufficient to prove the guilt of the accused. 23. In our view, 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. According to us, the circumstances of the case, as pointed out by the prosecution are totally insufficient to hold that the accused had abetted the deceased to commit suicide. 24. Let us test the veracity of the version of PW-1, PW-2 and PW-3 from another angle. We have gone through the evidence of said witnesses and we find that except making bald statement of assault and demands of dowry, there is no evidence adduced by them to prove any particular act of cruelty or harassment, to which the deceased was subjected to by the accused or that any complaint was made to the police about any such assault or harassment before the death of the deceased. Therefore, also in our opinion, the learned trial Court was entitled to take a view that the prosecution story as advanced from the evidence of said witnesses was not established beyond reasonable doubt. 25. It has been held by the Hon’ble Supreme Court in Mangat Ram Vs. State of Haryana, (2014) 12 Supreme Court Cases 595 that failure to take one’s wife to his place of posting would not amount to a willful conduct of such a nature which is likely to dive the woman to commit suicide. 26. The Hon’ble Supreme Court has held in Madivallappa V. Marabad and others Vs. State of Haryana, (2014) 12 Supreme Court Cases 595 that failure to take one’s wife to his place of posting would not amount to a willful conduct of such a nature which is likely to dive the woman to commit suicide. 26. The Hon’ble Supreme Court has held in Madivallappa V. Marabad and others Vs. State of Karnataka, (2014) 12 Supreme Court Cases 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. 27. Thus, we conclude by holding that the prosecution has failed to establish beyond reasonable doubt that the accused were guilty of the offences alleged against them. We have gone through the judgment passed by the learned trial Court at length. The 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 the learned trial Court. According to us also, the 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 dismissed being without any merit. Bail bonds, if any, furnished by the accused are discharged.