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Himachal Pradesh High Court · body

2017 DIGILAW 36 (HP)

State Of Himachal Pradesh v. Subhash Chand

2017-01-10

AJAY MOHAN GOEL, SANJAY KAROL

body2017
JUDGMENT Ajay Mohan Goel, J. - By way of this appeal, the State has challenged the judgment passed by the Court of learned Additional Sessions Judge-II, Kangra at Dharamshala in Sessions Case No. 6-G/VII/14, dated 24.11.2014, vide which learned trial Court has acquitted the accused for commission of offence punishable under Sections 498-A and 306 of the Indian Penal Code. 2. The case of the prosecution was that deceased Shakshi Sharma was married to accused in November, 2010. After marriage, accused started harassing the deceased and though initially deceased did not disclose these facts to her father (complainant), however, she did use to tell about the said harassment to her sisters. Further as per the prosecution, once deceased accompanied the accused to Delhi for the purpose of treatment of her mother-in-law, who had suffered burn injuries and accused harassed her and left her in the house of her sister at Delhi. It was further the case of the prosecution that in the year 2012, accused took the deceased to Nasik and harassed her and these facts were disclosed by the deceased telephonically. After the deceased returned from Nasik, she also disclosed that she was locked by the accused in the toilet for four hours, due to which she fainted. Further as per the prosecution, despite requests of the complainant to the accused to treat his daughter properly, the accused did not mend his way and he continued to harass her. As per the prosecution, on account of such harassment being met out to the deceased by the accused, she committed suicide on 17.3.2014 by hanging herself in the house of her in-laws at village Kharat Dehrian. 3. On the basis of complaint so filed by the complainant, an FIR was registered at Police Station Jawalamukhi and during the course of investigation, the Investigating Officer visited the spot, took photographs and also sent the dead body to Civil Hospital, Dehra for the purpose of post-mortem. 4. After completion of investigation, challan was filed in the Court and as a prima facie case was made out against the accused, accordingly he was charged for commission of offences punishable under Sections 498-A and 306 of the Indian Penal Code, to which he pleaded not guilty and claimed trial. 5. In order to prove its case, the prosecution in all examined 16 witnesses. 5. In order to prove its case, the prosecution in all examined 16 witnesses. This included father of the deceased complainant Surender Parkash, who entered the witness box as PW-1, PW-2 Rajni Sharma, PW- 3 Anu Bala, PW-4 Sushma all sisters of the deceased, PW-12 ASI Surinder Kumar, the Investigating Officer and also PW-14 Dr. Suman Dhiman, who conducted the post mortem of the dead body of the deceased. 6. Learned trial Court vide its judgment dated 24.11.2014 acquitted the accused for commission of offences punishable under Sections 498-A and 306 of the Indian Penal Code by holding that the evidence led by the prosecution was not sufficient to prove the guilt of the accused and that prosecution had miserably failed to prove beyond all reasonable doubts that on 17.03.2014 accused had abetted the deceased to commit suicide and also subjected her to cruelty. 7. A perusal of the judgment passed by the learned trial Court demonstrates that learned trial Court acquitted the accused by holding that there was no evidence that deceased was mentally harassed by the accused in any manner and that evidence disclosed that deceased had three miscarriages at Civil Hospital, Kangra after her marriage and accused was getting the deceased treated at Military Hospital, Nasik qua such disorder. Learned Trial Court also held that evidence reflected that accused was caring for the well being of the deceased and allegations qua alleged harassment were vague. Learned Trial Court also held that the statements of the prosecution witnesses did not prove any proximity between the alleged maltreatment and death of the deceased. It was held by the learned trial Court that in order to convict a person for commission of offence punishable under Section 498-A of the Indian Penal Code, a reasonable nexus has to be established between cruelty and suicide in order to make good the offence of cruelty under the penal laws. Learned Trial Court also held that cruelty has to be of such a gravity as is likely to drive a woman to commit suicide. Learned Trial Court also held that evidence should also show that "soon before" the death, the victim was subjected to cruelty or harassment and the expression "soon before" was of relevance where Section 113-B and Section 304-B of the Indian Penal Code were pressed into service. Learned Trial Court also held that evidence should also show that "soon before" the death, the victim was subjected to cruelty or harassment and the expression "soon before" was of relevance where Section 113-B and Section 304-B of the Indian Penal Code were pressed into service. Learned Trial Court also held that there was nothing incriminating against the accused in the diary allegedly belonging to the deceased as there were no allegations therein against the accused to have had committed any wilful act or omission or intentional aiding or instigation leading the deceased to commit suicide. Learned Trial Court held that the writings in the diary rather reflected the disturbed state of mind of the deceased and, therefore, it could not be ruled out that deceased was disturbed as she had not given birth to any child and due to this reason, she was under depression and committed suicide. Learned Trial Court also held that ingredients of abetment had not been proved on record by the prosecution against the accused and there were no allegations that accused demanded dowry in any form. Learned Trial Court also held that there was no allegation of any mental or physical torture of the deceased against the accused as on the day when the deceased committed suicide. On these bases, learned Trial Court acquitted the accused by giving him benefit of doubt. 8. Feeling aggrieved by the judgment of acquittal returned in favour of the accused by the learned trial Court, the State has filed this appeal. 9. We have heard the learned Deputy Advocate General and also learned counsel for the respondent and have also gone through the records of the case as well as the judgment passed by the learned trial Court. 10. In the present case, it is a matter of record that the marriage of the deceased with the accused took place in the year 2010 and the deceased committed suicide by hanging herself on 17.3.2014. It is also a matter of record that though deceased committed suicide on 17.3.2014, however, FIR in the present case was lodged on 22.3.2014. 11. Father of the deceased Shri. Surender Prakash, who entered the witness box as PW-1, deposed that he had five daughters and deceased was married with the accused in November, 2010, who maltreated and harassed the deceased. 11. Father of the deceased Shri. Surender Prakash, who entered the witness box as PW-1, deposed that he had five daughters and deceased was married with the accused in November, 2010, who maltreated and harassed the deceased. He further deposed that though deceased did not inform him directly about the said maltreatment meted out by the accused, however, he came to know about the same from his other daughters as well as his wife. He further stated that when mother-in-law of the deceased suffered burn injuries and was admitted in Army Hospital, New Delhi, his daughter also accompanied the accused to Delhi during treatment of her mother-in-law. He also stated that one of his daughter, namely, Anu Bala was settled in Delhi. He further stated that accused started harassing his daughter in New Delhi and took the deceased to the house of his other daughter, namely, Anu Bala in New Delhi and asked her to stay there with her. He further deposed that in the year 2012, accused took the deceased at his place of posting at Nasik, Maharashtra and from there, deceased telephonically informed his wife that accused was maltreating her. He further deposed that once at Nasik, the deceased was locked by the accused in a toilet for four hours, as was told to his wife by the deceased. He further deposed that his another daughter Rajni Sharma along with her husband had visited the deceased at the house of her in-laws and in their presence accused harassed her on telephone. He further stated that on 17.3.2014, he rang his daughter at 5:30 a.m. in the morning and found that she was not responding to the phone calls. He further stated that at 10:30 a.m., he received a telephone call from the mother-in-law of his daughter, who informed them that Sakshi had committed suicide by hanging herself. He further stated that thereafter they went to the house of deceased and found the body of Sakshi hanging. He further stated that his daughter committed suicide on account of harassment and maltreatment meted out by accused. In his cross-examination, he admitted it to be correct that the marriage of the deceased with the accused was an arranged marriage. He also admitted it to be correct that they had satisfied themselves about the economical and social condition of the family of the accused before the marriage. In his cross-examination, he admitted it to be correct that the marriage of the deceased with the accused was an arranged marriage. He also admitted it to be correct that they had satisfied themselves about the economical and social condition of the family of the accused before the marriage. He stated that accused had told them that his mother was suffering from fits of epilepsy, but later on they found that she was mad. He also stated that the accused was an army personnel and he admitted that the accused and his mother and other family members were distantly related to them and they did not make any demand of dowry or any other articles from them at the time of marriage. He admitted it to be correct that the accused had not kept any terms or conditions at the time of marriage to be fulfilled later on and even after marriage, accused did not make any demand of any sort from them. He stated that when they came to know about the death of the deceased, he went to the place along with his brother and his brother-in-law joined them on the way. He also stated that except Anu Bala, his other three daughters also reached the village of the deceased on 17.3.2014. He also stated that on 17.3.2014, at village Khart Deharian, they met police personnel who had come from Police Post, Khundian and Police Station, Jawalamukhi. He stated that police officials made inquiries about the incident from him and his daughters and that it was correct that on 17.3.2014, he did not lodge any report against the accused. He also admitted it to be correct that statements of his daughters Rajni Sharma, Anu Bala and Sushma Sharma were recorded on 27.3.2014, 25.3.2014 and 27.3.2014, respectively. He admitted it to be correct that on 17.3.2014, he had made a statement to the police that accused had never made any demand of dowry and his other daughters had also not complained to police. He also admitted it to be correct that from 17.3.2014 till 21.3.2014, he and his daughters did not lodge any complaint to the police. He admitted it to be correct that deceased had suffered three miscarriages, however, he denied that deceased was upset because she was suffering from repeated miscarriages. He also admitted it to be correct that from 17.3.2014 till 21.3.2014, he and his daughters did not lodge any complaint to the police. He admitted it to be correct that deceased had suffered three miscarriages, however, he denied that deceased was upset because she was suffering from repeated miscarriages. He could not give any satisfactory reason for delay in lodging the FIR, but self stated that he remained upset during that time. 12. PW-2 Rajni Sharma, daughter of the deceased in her cross-examination admitted it to be correct that on 17.3.2014, no statement of her was recorded by the police. She admitted it to be correct that her deceased sister had suffered miscarriages on three occasions. She also admitted that no reasons had been given by her as to why there was delay in recording of her statement, which was recorded on 27.3.2014. 13. PW-3 Anu Bala, another sister of the deceased deposed that deceased was her younger sister and was married with accused in the year 2010. She deposed that after marriage, her sister and accused used to come to Delhi and her sister had told her that accused had asked her to live with her (PW-3) and let him live peacefully. She also stated that after living with her for one day, both of them returned back. In her cross-examination, she admitted that prior to 25.3.2014, she did not lodge any complaint against the accused to the police. 14. PW-4 Sushma, another sister of the accused also stated that it was the accused who compelled the deceased to commit suicide by hanging herself due to maltreatment and harassment meted out by the accused. In her cross-examination, she stated that her statement was recorded for the first time on 27.3.2014 and she further admitted it to be correct that for ten days, she did not make any statement to the police. She also admitted it to be correct that no dowry, money or any article was ever demanded by the accused from her father or any other family member. 15. Kamlesh Kumar, uncle of the deceased, who entered the witness box as PW-5, also admitted in his cross-examination that on 17.3.2014, his brother Surender Prakash and his daughters did not lodge any complaint against the accused. 16. 15. Kamlesh Kumar, uncle of the deceased, who entered the witness box as PW-5, also admitted in his cross-examination that on 17.3.2014, his brother Surender Prakash and his daughters did not lodge any complaint against the accused. 16. I.O. Surinder Kumar entered the witness box as PW-12 and he inter alia deposed that on 17.3.2014, one mobile and one diary of the deceased were also recovered. In his cross-examination, he admitted it to be correct that he recorded statement Ex. D1 of PW-1 Surinder Prakash on 17.3.2014, whereby he had stated that the accused had never made any demand of dowry from them and his daughter (deceased) had also not made any complaint to him in this regard against the accused. He also stated that no report was lodged against the accused even after going through the contents of diary Ex. PW 12/H, which was shown to the complainant and his daughters. He also admitted it to be correct that the accused was getting the deceased treated for her failure to give birth to a child. 17. A perusal of the testimony of the father and sisters of the deceased make one thing very apparent that no demand of dowry or any other demand in fact was raised from them by the accused either at the time of marriage or thereafter. From this, it can be safely inferred that no dowry demand at any stage was raised by the accused and thus the prosecution was not able to establish that deceased was harassed by the accused on account of dowry. 18. Now coming to the other aspect of the matter that the accused used to maltreat the deceased, save and except the bald statements of her father and three sisters, there is no other evidence produced on record by the prosecution to prove this fact. This Court is not suggesting that this factum cannot be proved by the prosecution on the basis of statements of the father and sisters of the deceased, but the fact of the matter remains that no evidence worth its name has been produced on record by the prosecution even on the strength of the testimonies of these witnesses from which it can be inferred that the deceased was maltreated by the accused. There is no complaint of any nature whatsoever lodged by the complainant or his other daughters against the accused to this effect, neither there is any material to demonstrate that during her lifetime, deceased had lodged any such complaint against the accused. Though this Court is aware of the fact that because death in this case has taken place within seven years of the marriage and the presumption contained to Section 113-B of the Indian Evidence Act is attracted in this regard, however, the prosecution has not been able to place any material on record on the basis of which the said presumption could be taken to its logical conclusion that the deceased was in fact maltreated by the accused. Besides this, despite the fact that the deceased hanged herself on 17.3.2014, no complaint was lodged against the accused either by the complainant or the other sisters of the deceased immediately or soon after. Statement of the father of the deceased under Section 154 Cr. P.C. was recorded on 23.3.2014, on the basis of which, the FIR was lodged. The prosecution has not been able to explain as to why there was this delay in lodging the FIR. Therefore, this delay in lodging the FIR gives rise to the doubt of the FIR having been lodged as an afterthought by the complainant against the accused. Therefore, in our considered view, the prosecution has miserably failed to establish the ingredients of Section 498-A of the Indian Penal Code against the accused in the present case. 19. It has been held by the Hon''ble Supreme Court in Sangara Bonia Sreen v. State of Andhra Pradesh, 1997 (5) Supreme Court Cases 348 , 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. 20. 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. 20. 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. 21. It has been held by this Court in State of Himachal Pradesh v. Shyam Lal and others, Latest HLJ 2014( HP) 1126 "It is a settled position of law that there should be reasonable nexus between cruelty and suicide. It has to be substantiated, established and proved on record. Cruelty by itself would not amount to having committed an offence punishable under Section 498-A IPC. A reasonable nexus has to be established between cruelty and the suicide in order to make good the offence of cruelty under the penal laws. Cruelty has to be of such a gravity as is likely to drive a woman to commit suicide. Suicide alone would not establish that it was occasioned on account of cruelty which was of sufficient gravity so as to lead a reasonable person placed in similar circumstances to commit suicide. Mere assumption or demand of dowry by itself in given circumstances may not amount to cruelty. Harassment has to be with a definite object i.e. to meet any unlawful demand. Every act of cruelty is not punishable. There must be evidence to show that soon before the death, the victim was subjected to cruelty or harassment. Prosecution has to rule out the possibility of natural or accidental death so as to prove that death had occurred otherwise than in normal circumstances. There must be existence of a proximate and live link between the effect of cruelty based on dowry demand and the concerned death. If the incident of cruelty is remote in time and has become stale enough not to disturb the mental equilibrium of the woman concerned, it would be of no consequence." 22. There must be existence of a proximate and live link between the effect of cruelty based on dowry demand and the concerned death. If the incident of cruelty is remote in time and has become stale enough not to disturb the mental equilibrium of the woman concerned, it would be of no consequence." 22. It is necessary for the prosecution to substantiate and establish that there was a reasonable nexus between cruelty which has been meted out by the accused and suicide which is committed by the deceased. It has been held by this Court that cruelty has to be of such gravity as is likely to drive a woman to commit suicide. Suicide alone would not establish that it was occasioned on account of cruelty which was of sufficient gravity so as to lead a reasonable person placed in similar circumstances to commit suicide. On the basis of material on record which has been produced on record by the prosecution it cannot be said that the prosecution has placed on record sufficient material to infer that the deceased was subjected to such cruelty by the accused that she was forced to commit suicide on account of the said acts of the accused. Further there is no material produced on record by the prosecution to the effect that accused by his acts abetted the commission of suicide by the aforesaid acts and such acts of his amount towards one factor only so as to persuade the deceased to commit suicide. 23. A perusal of the judgment passed by the learned trial court also demonstrates that all these aspects of the matter have been taken into consideration by the learned trial court and in our considered view the findings returned by the learned trial court to the effect that prosecution was not able to bring home the guilt of the accused beyond all reasonable doubt cannot be faulted with. 24. We concur with the findings so returned by the learned trial court. In our considered view also the material produced on record by the prosecution does not prove beyond reasonable doubt the guilt of the accused. Accordingly, while upholding the judgment passed by the learned trial Court, we dismiss the present appeal being devoid of merit.