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2016 DIGILAW 794 (HP)

State of H. P. v. Prittam Singh

2016-05-13

AJAY MOHAN GOEL, RAJIV SHARMA

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JUDGMENT : Ajay Mohan Goel, J. This appeal has been filed by the State against judgment dated 27.05.2013 passed by learned Additional Sessions Judge (II), Kangra at Dharamshala, in RBT S.C. No. 35-G/10/2008, vide which learned trial Court has acquitted the accused for offences under Sections 498-A, 306 read with Section 34 I.P.C. 2. The case of the prosecution was that deceased Reeta Devi was married to co-accused Prittam Singh and from the said wed-lock, deceased and accused Prittam Singh were having two children. Deceased was maltreated and humiliated by her husband (accused No. 1) and other family members of the accused i.e. father-in-law, mother-in-law, sister-in-law and brother-in-law of the deceased. On account of the persistent maltreatment meted out to her by the accused, the deceased committed suicide by consuming organo-chlorine insecticide poison. She consumed poison on 05.05.2007 and was brought to CHC Nadaun at about 3.00 P.M. with alleged history of consumption of some insecticide poison at about 1.00 P.M. On the same day, Dr. Anil, Medical Officer, CHC Nadaun, examined the prosecutrix who was alive at that time but she was not in a position to make any statement when ASI Police Station Indora moved an application to record the statement of Reeta Devi, who subsequently died due to asphyxia. Statement of her father Shri Parkash Chand was recorded under Section 154 Cr.P.C. and in pursuance to the same, FIR No. 72/07 was registered against the accused persons under Sections 498-A, 306 read with Section 34 I.P.C. at Police Station Jawalamukhi. 3. In order to substantiate its case, the prosecution examined 16 witnesses. 4. PW-1 Paraksh Chand, father of the deceased, has stated that he had two sons and two daughters. Reeta was his younger daughter who was married to accused Prittam Singh about 9 years back. Prittam was doing a job at Ludhiana but after 2/3 years of marriage, he came back to his house. He used to drive a tractor. All the accused persons used to torture his daughter. He further deposed that accused persons also used to beat Reeta. As per him, these facts were revealed to him by his deceased daughter. He also mentioned that they had already reported the matter to the Panchayat where accused persons were also called. Before the Panchayat accused persons tendered apology, upon which he sent back his daughter to the house of her in-laws. As per him, these facts were revealed to him by his deceased daughter. He also mentioned that they had already reported the matter to the Panchayat where accused persons were also called. Before the Panchayat accused persons tendered apology, upon which he sent back his daughter to the house of her in-laws. He also stated that before Panchayat written compromise deed was prepared. He was telephonically informed by the police that his daughter has consumed poison and she has died. He also stated that his daughter consumed poison because the accused persons had been torturing her. 5. PW-2 Kanta Devi, mother of the deceased, also stated that her daughter was married to the accused about 9 years back and at the time of marriage, they had given everything to their daughter as per their capacity. Earlier accused Prittam used to work at Ludhiana but thereafter he came back to his village, where he used to drive his tractor. She has further deposed that accused Prittam used to consume liquor and thereafter beat her daughter and he also used to torture her. According to her, all the accused persons used to torture her daughter, which fact was told to her by the deceased herself. She also stated that the matter was reported to the Panchayat where a compromise was arrived at. She further stated that her daughter consumed poison because accused persons had been torturing and beating her. 6. PW-3 Ram Pal is the cousin of deceased Reeta and has stated that accused Prittam used to beat his sister, whereas other accused used to torture her. He has further stated that all these facts were told to him by deceased Reeta herself. He has also deposed that phone call was received from Police Station that Reeta has consumed poison and the accused persons did not inform them about the said happening. As per him, Reeta consumed poison because the accused persons had been torturing her. 7. PW-4 Rajneesh Kumar, brother of the deceased, has stated that all the accused used to torture his sister for dowry and Prittam used to beat his sister after consuming liquor. He also mentioned that the matter was reported to the Panchayat and before the said Panchayat accused persons had apologized. As per him, on 05.05.2007 police telephonically informed them that his sister had consumed poison. 8. PW-5 Dr. He also mentioned that the matter was reported to the Panchayat and before the said Panchayat accused persons had apologized. As per him, on 05.05.2007 police telephonically informed them that his sister had consumed poison. 8. PW-5 Dr. Anil, who was posted as Medical Officer at CHC Nadaun in May, 2007, has stated that on 05.05.2007 police had moved an application Ext. PW5/A before him for conducting the medical examination of Reeta Devi. The police had also asked whether she was fit to give statement and vide his opinion Ext.PW5/B, he opined that she was not fit to give statement. 9. PW-6 Suresh was the Vice President of Shantla Panchayat in the year 2005. He has stated that the deceased had moved an application before the Panchayat Ext. PW6/A upon which on 03.03.2005 compromise was effected between the parties. As per him, the compromise was signed by him as well as by deceased Reeta Devi, accused Prittam, Kewal Singh, Biri Singh, Suman Lata and Tilak Raj. 10. PW-7 Pardeep Kumar who was posted as Pharmacist in Government Veterinary Dispensary Shantla in the year 2007, has deposed that on 17.02.2007 Reeta Devi had taken medicine from them which was meant to kill the insecticide of animals. The name of medicine was Broot. 11. PW-8 Surinder was posted as SI/SHO in Police Station Jawalamukhi and on 05.05.2007, FIR was registered under his signatures. 12. PW-9 H.C. Vipan Kumar has stated that he was posted in Police Station Jawalamukhi in the year 2007 and he had recorded the statement of Parkash Chand under Section 154 Cr.P.C. Rukka was also prepared by him, which was sent by him through constable Naresh to Police Station Jawalamukhi. 13. PW-10 Dr. Chanderdeep Sharma has deposed that he was posted as Registrar Forensic Medicine in RPGMC Tanda in the year 2007. On the application by the police, he conducted postmortem of the deceased on 06.05.2007 at 02.10. P.M. According to him, the patient was referred to RPGMC Tanda where she died on 05.05.2007. 14. PW-11 ASI Thakru Ram was posed as MHC Police station Jawalamukhi in the year 2007 and as per him, the case property was deposited with him, which was thereafter sent to FSL Junga. According to him, the case property was not tampered with while it remained in his possession. 15. 14. PW-11 ASI Thakru Ram was posed as MHC Police station Jawalamukhi in the year 2007 and as per him, the case property was deposited with him, which was thereafter sent to FSL Junga. According to him, the case property was not tampered with while it remained in his possession. 15. PW-12 Constable Manohar Lal has stated that in the year 2007, he was posted in Police Station Jawalamukhi and on 16.05.2007 MHC Thakur Ram handed over to him two sealed parcels alongwith sample seal and envelope which were deposited by him with FSL Junga on the next day. On his return, he had handed over the receipt to the MHC. He has also stated that the case property was not tampered with while it remained in his possession. 16. PW-13 Inspector Varinder Jaswal has stated that he was posted as SI/SHO in Police Station Jawalamukhi and he has prepared challan in this case on conclusion of the investigation. 17. PW-14 Subhash Chand was posted as ASI/I.O. at Police Station Nadaun in the year 2007 and he moved an application to Medical Officer CHC Nadaun for recording the statement of Reeta Devi and had also obtained the opinion of the Doctor Ext.PW5/B, whereby the Medical Officer had opined that the patient was not fit to give statement. 18. PW-15 S.I. Tilak Raj was posted as ASI/I.O. in the Police Station Jawalamukhi in the year 2007. The case was handed over for investigation to him by the SHO on 05.05.2007 and he has carried out the investigation in the matter. 19. PW-16 is the statement of Manish Kumar, aged 13 years, who is the minor son of deceased Reeta Devi and accused Prittam Singh. He has stated that he had one younger sister and that presently he was staying with his maternal uncle because of the death of his mother. He has also stated that his mother committed suicide. He has deposed that his father used to maltreat and harass his mother, who consumed poison. He stated that he could not say whether she herself consumed the poison or the same was administered to her by his father. He has stated that his father used to beat his mother under the influence of liquor and other accused also used to harass his mother. 20. No evidence was led in defence by the accused persons. 21. He stated that he could not say whether she herself consumed the poison or the same was administered to her by his father. He has stated that his father used to beat his mother under the influence of liquor and other accused also used to harass his mother. 20. No evidence was led in defence by the accused persons. 21. The learned trial Court on the basis of the material produced on record by the prosecution concluded that the prosecution has miserably failed to prove its case against all accused persons for offences punishable under Sections 498-A, 306 read with Section 34 I.P.C. and consequently, it acquitted the accused persons. 22. It has been argued by Mr. Vikram Singh Thakur, learned Deputy Advocate General on behalf of the State that the learned trial Court has appreciated the evidence in a slip-shod manner and the accused persons have been acquitted on flimsy grounds. He has further argued that the learned trial Court has failed to appreciate the evidence of the prosecution in its proper perspective and also at the same time has set unrealistic standards to evaluate the direct and cogent prosecution evidence. It has been further argued that the reasoning given by the learned trial Court in acquitting the accused is manifestly unreasonable and unsustainable as there was no apparent reason for discarding the well reasoned and consistent testimony of the prosecution witnesses. It has been further argued that the learned trial Court has not appreciated the statements of PW-1, PW-2, PW-3, PW-4 and PW-16 a child witness, who has clearly and in un-ambiguous terms stated that the deceased was maltreated and harassed by the accused persons, as a result of which, the deceased consumed poison. It has been submitted by the State that the findings arrived at by the learned trial Court are perverse and not sustainable in law and the same are, therefore, liable to be set aside and the accused are liable to be convicted for the offences for which they have been charged. 23. We have heard learned counsel for the appellant and have also gone through the judgment passed by the learned trial Court as well as the records of the case. 24. The factum of deceased Reeta Devi dying an unnatural death is not in dispute. 23. We have heard learned counsel for the appellant and have also gone through the judgment passed by the learned trial Court as well as the records of the case. 24. The factum of deceased Reeta Devi dying an unnatural death is not in dispute. The accused have been charged under Sections 498-A and 306 read with Section 34 I.P.C. As per Section 498-A, whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine. As per this section, ”cruelty” means any willful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman. Further “cruelty” also means harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand. 25. It has come in the statements of PW-1 and PW-2 i.e. the parents of the deceased, that they had reported the matter with regard to the harassment of their daughter by the accused to the Panchayat, where a compromise had taken place. The compromise is Ext.PW6/B dated 03.03.2005. A perusal of the said compromise will demonstrate that the said compromise was entered into between the parties on the following terms:- (i) Accused will not enter into any quarrel with his wife and he will also not use any bad words. (ii) Accused will give to his wife Rs.200/- P.M. for expenses and he will also bear the expenses of the rest of the family. (iii) In future accused will not enter into any quarrel nor will he verbally abuse his wife or his family and in case, he quarrels with his wife or family after consuming liquor then whatever action has to be taken as per law, should be taken against him. (iv) Accused has agreed that he will sell the dog which he has kept within one month and the dog will not be tied in the room where the family members reside. (iv) Accused has agreed that he will sell the dog which he has kept within one month and the dog will not be tied in the room where the family members reside. Reeta Devi will not cook any Roti for the dog. 26. A perusal of the contents of the said compromise will demonstrate that there is no allegation of physical abuse by the accused to the deceased. Further, there is no reference of any demand of dowry etc. in the terms of settlement of this agreement. In fact, the terms on which the agreement was entered into were to the effect that the accused shall not enter any quarrel either with the deceased or with the other family members and he shall pay to his wife Rs.200/- P.M. and will also look after the needs of the rest of the family. It was further contemplated in the agreement that he shall sell the dog within one month and will not keep the same in the room where the family lives and Reeta Devi shall not be preparing Rotis for the said dog. It was also agreed that in case the accused enters into quarrel with Reeta Devi or any other family members after consuming liquor, then he shall be dealt with in accordance with law. 27. This compromise is dated 03.03.2005, whereas the suicide was committed on 05.05.2007. The prosecution has not been able to place material on record in order to substantiate that the deceased was subjected to any kind of physical torture etc. after the said compromise by the accused. No independent witness has been associated by the prosecution to substantiate the allegation that the deceased was physically abused and harassed by the accused/husband or by the remaining accused. In the compromise referred to above, there is no reference to any other accused at all except the husband of deceased. 28. Now in this background in case we again peruse the statements of the PWs then it will be revealed that PW-1 in his cross-examination has said that after the marriage of his daughter whenever she used to visit his house accused Prittam Singh used to accompany her. He has also admitted that Prittam Singh was fond of hunting. He had two dogs. He has also admitted that the children of the deceased were living with them and they were never sent to their father. He has also admitted that Prittam Singh was fond of hunting. He had two dogs. He has also admitted that the children of the deceased were living with them and they were never sent to their father. He has also stated that the accused persons had taken Reeta to hospital. Similarly, PW-2, mother of the deceased, in her cross-examination has stated that after the marriage of her daughter, she and Prittam used to visit their house. She has self-stated that even in their house accused Prittam Singh used to torture her daughter. She has stated that the accused was having 5/6 dogs and he used to ask her daughter to prepare food for the dogs. She has been confronted with her statement made under Section 161 Cr.P.C., wherein the facts which she has mentioned in her statement have not been recorded. This demonstrates that the said witness has improved her statement with the passage of time. She being mother of the deceased is naturally an interested witness. Therefore, her statement has to be scrutinized very very minutely to conclude as to whether the same is trustworthy and whether the Court can rely upon it to convict the accused. Whereas, PW-1 and PW-2 have not mentioned in their statements that the deceased was harassed for dowry, however PW-4 states that the accused used to torture his sister for dowry. Thus, this demonstrates that there are major contradictions in the statements of the prosecution witnesses. Further, these witnesses are not independent witnesses but are interested witnesses being closely related to the deceased. Therefore, the major contradictions and improvement in the statements of these witnesses shrouds the truthfulness and the trustworthiness of the same. Whereas, PW-1, PW-2 and PW-4 have maintained that the accused was living with his brothers. PW-6 Vice President of Shantla Panchayat has stated in his cross-examination that the accused and his brothers were living separately. He has also admitted that at the time of compromise, the main reason for dispute was the dog of accused and that after compromise both the parties were living with peace. Incidentally, he is one of the signatory to the compromise and truthfulness of the deposition of this witness has not been impinged. 29. The most important aspect of the matter is the deposition of PW-16 who happens to be the minor son of the deceased. Incidentally, he is one of the signatory to the compromise and truthfulness of the deposition of this witness has not been impinged. 29. The most important aspect of the matter is the deposition of PW-16 who happens to be the minor son of the deceased. As already mentioned above, PW-16 Manish Kumar has deposed that his father used to maltreat and harass his mother, who consumed poison and committed suicide. He also deposed that his father used to beat his mother under the influence of liquor and the other accused used to harass his mother. In his cross-examination, he has stated that he has been living with his maternal uncle from the day his mother died. He has denied the suggestion that earlier, the statement was recorded by the police at the instance of his maternal grand-father and maternal uncle and whatsoever he was deposing in the Court was at the instance of the maternal uncle. 30. In Golla Yelugu Govindu vs. State of Andhra Pradesh (2008) 16 SCC 769 , the Apex Court has held as under:- “11. 6. Indian Evidence Act, 1872 (in short the 'Evidence Act') does not prescribe any particular age as a determinative factor to treat a witness to be a competent one. On the contrary, Section 118 of the Evidence Act envisages that all persons shall be competent to testify, unless the Court considers that they are prevented from understanding the questions put to them or from giving rational answers to these questions, because of tender years, extreme old age, disease-whether of mind, or any other cause of the same kind. A child of tender age can be allowed to testify if he has intellectual capacity to understand questions and give rational answers thereto. This position was concisely stated by Brewer J in Wheeler v. United States (159 U.S. 523). The evidence of a child witness is not required to be rejected per se; but the Court as a rule of prudence considers such evidence with close scrutiny and only on being convinced about the quality thereof and reliability can record conviction, based thereon. (See Surya Narayana v. State of Karnataka ( 2001 (1) Supreme 1 ). 31. In Dattu Ramrao Sakhare v. State of Maharashtra ( 1997 (5) SCC 341 ) it was held as follows: '5. (See Surya Narayana v. State of Karnataka ( 2001 (1) Supreme 1 ). 31. In Dattu Ramrao Sakhare v. State of Maharashtra ( 1997 (5) SCC 341 ) it was held as follows: '5. .....A child witness if found competent to depose to the facts and reliable one such evidence could be the basis of conviction. In other words even in the absence of oath the evidence of a child witness can be considered under Section 118 of the Evidence Act provided that such witness is able to understand the answers thereof. The evidence of a child witness and credibility thereof would depend upon the circumstances of each case. The only precaution which the Court should bear in mind while assessing the evidence of a child witness is that the witness must be a reliable one and his/her demeanour must be like any other competent witness and there is no likelihood of being tutored'. The decision on the question whether the child witness has sufficient intelligence primarily rests with the trial Judge who notices his manners, his apparent possession or lack of intelligence, and said Judge may resort to any examination which will tend to disclose his capacity and intelligence as well as his understanding of the obligation of an oath. The decision of the trial court may, however, be disturbed by the higher Court if from what is preserved in the records, it is clear his conclusion was erroneous. This precaution is necessary because child witnesses are amenable to tutoring and often live in a world of make beliefs. Though it is an established principle that child witnesses are dangerous witnesses as they are pliable and liable to be influenced easily, shaped and moulded, but it is also an accepted norm that if after careful scrutiny of their evidence the Court comes to the conclusion that there is an impress of truth in it, there is no obstacle in the way of accepting the evidence of a child witness.” 32. It has been held by the Hon’ble Supreme Court that evidence of a child witness should find adequate corroboration before it could be accepted. 33. Rule of caution requires that conviction should not be based on the uncorroborated testimony of a child witness. It has been held by the Hon’ble Supreme Court that evidence of a child witness should find adequate corroboration before it could be accepted. 33. Rule of caution requires that conviction should not be based on the uncorroborated testimony of a child witness. Though there is no bar in acting upon the uncorroborated testimony of a child witness yet prudence requires that it should be corroborated on the material particulars. It is a sound rule of practice not to act upon the uncorroborated testimony of a child whether sworn or not. But this is a rule of caution and not rule of law. This is because testimony of a child witness cannot be discarded at all together and if testimony is truthful and not shaken in the cross-examination, the same can be accepted. The Hon’ble Supreme Court has held in Ratansinh Dalsukhbhal Nayak Vs. State of Gujarat, AIR 2004 Supreme Court 23, that if the testimony of a child witness is found to be a satisfactory, conviction can be based on the same. 34. In this background, when we test the deposition of PW-16 Manish Kumar, this Court cannot be oblivious to the fact that PW-16 was about 8 years old in the year 2005 when the incident took place. Further from the day his mother died, he has been residing with his maternal uncle. His deposition to the effect that his father used to beat his mother under the influence of liquor is general in nature. He has not stated that on how many occasions or when particularly his mother was subjected to such cruelty or whether soon before she committed suicide she was subjected to any such maltreatment by the accused. Factum of this witness deposing under the influence of his maternal grand-father and maternal uncle can also not be ruled out. This Court has already taken note of the fact that except bald assertions made in the statements by the prosecution witnesses, there is no material on record to suggest that the deceased was subjected to any cruelty by either of the accused. 35. The Hon’ble Supreme Court has held in Madivallappa V. Marabad and others Vs. This Court has already taken note of the fact that except bald assertions made in the statements by the prosecution witnesses, there is no material on record to suggest that the deceased was subjected to any cruelty by either of the accused. 35. 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. 36. It has been held by the Hon’ble Supreme Court in Sangara Bonia Sreen Vs. State of Andhra Pradesh, 1997 (4) Supreme, that the basic ingredients of offence under Section 306 are (a) suicidal death and (b) abetment thereof. In our considered view, 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. 37. It is a unique legal phenomenon in the Indian Penal Code that the only act, the attempt of which alone will become an offence, is suicide. The person who attempts to commit suicide is guilty of the offence under Section 309 IPC, whereas the person who committed suicide cannot be reached at all. Section 306 renders the person who abets the commission of suicide punishable for which the condition precedent is that, suicide should necessarily have been committed. Thus, the crux of the offence under Section 306 itself is abetment. In other words, if there is no abetment there is no question, the offence under Section 306 comes into play. 38. Hereinafter, we will apply these principles to the facts of the present case. A close scrutiny of the statements of the prosecution witnesses will demonstrate that none of them have mentioned any explicit act on account of the accused which can be termed to be an act of abetment on their behalf which led deceased Reeta Devi to commit suicide. Hereinafter, we will apply these principles to the facts of the present case. A close scrutiny of the statements of the prosecution witnesses will demonstrate that none of them have mentioned any explicit act on account of the accused which can be termed to be an act of abetment on their behalf which led deceased Reeta Devi to commit suicide. On the basis of the statements of the prosecution witnesses who were also interested witnesses, it cannot be said that the prosecution was successful in demonstrating and proving that the accused had committed any act which could be termed to be an act of abetment towards the commission of suicide by deceased Reeta Devi. 39. 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, we are afraid that 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 he had instigated the deceased to commit suicide. 40. 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 the learned trial Court whereby the accused has been acquitted is either perverse or the acquittal of the accused by the learned trial Court has amounted to travesty of justice. 41. 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. 41. 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.