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2018 DIGILAW 1457 (HP)

State Of Himachal Pradesh v. Roshni Devi

2018-08-03

CHANDER BHUSAN BAROWALIA, TARLOK SINGH CHAUHAN

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JUDGMENT Chander Bhusan Barowalia, J. - The present appeal is maintained by the State, laying challenge to judgment dated 25.02.2011, passed by learned Additional Sessions Judge (II), Kangra at Dharamshala, District Kangra, H.P., in Sessions Trial No. 5 of 2011, RBT SC No. 62- K/VII/2010, whereby the respondents were acquitted for the commission of the offence punishable under Section 498A, 109 and 302 Indian Penal Code, 1960 (hereinafter referred to as "IPC"). 2. The key facts necessary for adjudication of this appeal can tersely be summarized as under: Smt. Mamta (deceased) was married to accused No. 2, Rakesh (against whom the present appeal stands abated, vide order dated 15.06.2018, passed by this Court, as he died during the pendency of the appeal) and accused No. 1, Roshini Devi is mother of accused No. 2. It is alleged that accused Rakesh used to do job at Jallandhar and he quite often used to quarrel with the deceased. The matter was reported to the Panchayat and it was compromised. On 05.12.2009, at about 03:30 a.m., one Akshay Kumar, nephew of accused Rakesh, came to the house of Joginder (complainant), the then Ward Panch, and informed that the deceased is lying in the pool of blood. Joginder Singh alongwith Viyasan Devi and Maya Devi rushed to the house of the accused persons and found the gory dead body of the deceased. Injury marks were visible on the head of the deceased and the blood was oozing. The complainant got his statement recorded under Section 154 Cr.P.C., wherein he raised suspicion that accused Rakesh, after killing the deceased, had fled away. A case was registered and the investigation ensued. Police prepared the spot map and post mortem of the deceased was conducted at Zonal Hospital, Dharamshala. During the course of investigation, police recovered a pair of ''V'' shaped slippers and a quilt cover from the spot of occurrence. Police also took into possession blood stains with the help of cotton and cloth, ear rings, a blood stained danda and two buttons. Accused Rakesh Kumar, through his disclosure statement, got recovered a knife and a jhabbal (iron bar). The spot of occurrence, as well as the spot wherefrom jhabbal and knife were recovered, were photographed. A blood stained towel was produced by one Rikhi Ram, grand father of the deceased, which was taken into possession. After completion of investigation, challan was presented in the Court. The spot of occurrence, as well as the spot wherefrom jhabbal and knife were recovered, were photographed. A blood stained towel was produced by one Rikhi Ram, grand father of the deceased, which was taken into possession. After completion of investigation, challan was presented in the Court. 3. The prosecution, in order to prove its case, examined as many as nineteen witnesses. Statements of the accused persons were recorded under Section 313 Cr.P.C. wherein they pleaded not guilty. The accused persons did not lead any evidence in defence. 4. The learned Trial Court, vide impugned judgment dated 25.02.2011, acquitted the accused persons for the commission of the offence punishable under Sections 498A, 109 and 302 IPC, hence the present appeal is preferred by the State. 5. The learned Additional Advocate General has argued that the learned Trial Court has wrongly appreciated the facts and law and the judgment is based on surmises and conjectures, thus the same is liable to be set aside. He has further argued that the learned Trial Court did not appreciate the evidence in its right and true perspective and the accused persons were wrongly acquitted. He has argued that though accused Rakesh Kumar has died and the appeal against him stands abated, but accused Roshni Devi is equally liable and she is required to be convicted after appreciating the evidence. He has argued that the appeal be allowed and respondent No. 1 be convicted. Conversely, the learned Senior Counsel, being Amicus Curiae, has argued that there is no evidence against accused Roshni Devi qua the offence she is charged with. He has further argued that accused Rakesh Kumar has already died and the appeal against him stands abated. He has argued that the learned Trial Court has correctly appreciated the material, which has come on record, and the judgment, as rendered by the learned Trail Court, is after appreciating the facts and law to their right and true perspective. The judgment of acquittal needs no interference and the appeal be dismissed. 6. In rebuttal, the learned Additional Advocate General has argued that after re-appreciating the evidence, accused No. 1 be convicted by setting aside the judgment of the learned Trial Court, as the prosecution has proved the guilt of accused No. 1. 7. In order to appreciate the rival contentions of the parties we have gone through the record carefully. 8. 6. In rebuttal, the learned Additional Advocate General has argued that after re-appreciating the evidence, accused No. 1 be convicted by setting aside the judgment of the learned Trial Court, as the prosecution has proved the guilt of accused No. 1. 7. In order to appreciate the rival contentions of the parties we have gone through the record carefully. 8. At the very outset, it is apt to mention that during the pendency of the present appeal accused Rakesh Kumar, who was son of accused Roshni Devi, died and vide order dated 15.06.2018, passed by this Court, appeal against him stood abated. Now, the appeal only survives against accused Roshini Devi. 9. Precisely, as per the prosecution case accused Rakesh Kumar, being husband of the deceased, used to subject the deceased to cruelty by demanding dowry. Accused Rakesh also used to give beatings to the deceased and accused Roshini Devi used to abet accused Rakesh Kumar to subject the deceased to cruelty. It is also alleged that accused Rakesh killed the deceased, so the prosecution proceeded against him under Sections 498A and 302 IPC. So far as accused Roshni Devi is concerned, the prosecution proceeded against her under Sections 498A read with Section 109 IPC. So, the present appeal against accused Roshni Devi is only qua Section 498A read with Section 109 IPC. Now the prosecution firstly needs to conclusively prove and establish the offence against accused Roshni Devi under Section 498-A IPC. Section 498-A IPC is extracted hereunder for ready reference: "498A. Husband or relative of husband of a woman subjecting her to cruelty.-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. Section 498-A IPC is extracted hereunder for ready reference: "498A. Husband or relative of husband of a woman subjecting her to cruelty.-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. Explanation.-For the purpose of this section, "cruelty" means- (a) any wilful 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; or (b) 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.]" A bare reading of Section 498A IPC shows that the prosecution has to clearly prove and establish cruelty and the bald assertions without any real evidence cannot result into conviction of the accused. The prosecution has to prove that the deceased was the subject matter of cruelty on account of dowry by accused Roshni Devi. The prosecution has to establish clearly and beyond any reasonable doubt that the death of the deceased was the subject matter of cruelty soon before death. 10. In order to prove Section 498A IPC, the prosecution has to establish that the deceased was subjected to cruel behavior by the accused. The prosecution has examined three witnesses for establishing the fact that the deceased was given cruel treatment by accused Roshni Devi. First in the line is PW-11, Vidya Devi, mother of the deceased, PW-6, Rikhi Ram, grand father of the deceased and PW-5, Gopal Dass, uncle of the deceased. 11. Pw-11, Vidya Devi (mother of the deceased) deposed that the deceased was married with accused Rakesh, who used to work in a factory at Jallandhar. She has deposed that after 10-15 days of marriage the deceased came to her house and told that accused Roshni Devi is demanding Rs. 2.5 lacs for starting business for accused Rakesh. As per the testimony of this witness, accused Rakesh also demanded the money. She has deposed that after 10-15 days of marriage the deceased came to her house and told that accused Roshni Devi is demanding Rs. 2.5 lacs for starting business for accused Rakesh. As per the testimony of this witness, accused Rakesh also demanded the money. She has deposed that accused Roshini used to tell the deceased that in case money is not given to them then the deceased will be ousted and accused Rakesh would be remarried. Deceased also divulged to PW-11 that owing to demand of dowry she remained under mental and physical tension. In the year 2008, the deceased gave birth to a male child, but she was continuously given cruel treatment by the accused persons. During the year 2009 accused Roshni moved an application to the Panchayat and the matter was compromised, so the deceased went alongwith accused Rakesh Kumar to Jallandhar. She has further deposed that the deceased telephoned her from Jallandhar and told that accused gave beatings to her for not bringing money. Subsequently, accused Rakesh came to their house alongwith the deceased and child. She has further deposed that she alongwith others made accused Rakesh to understand that they are poor persons and not able to pay money. On 05.12.2009, at about 07:00 a.m., she received a telephonic call from Deputy Superintendent of Police, who informed her that the deceased had been killed and accused Rakesh has absconded. She rushed to the house of the accused persons and saw the gory dead body of the deceased. This witness, in her cross-examination, has deposed that till the death of Mamta they did not lodge any complaint against the accused persons either in Panchayat or with the police. 12. In the wake of what has been deposed by PW-11, Vidya Devi, it is worthwhile to highlight statement, Ex. P-17, recorded in the Gram Panchaya, Dadoli. Ex. P-17, which is signed by the deceased, both the accused persons and other persons. Ex. P-17 only reveals that there had been some misunderstanding between the deceased and accused Rakesh due to usual quarrels amongst them being husband and wife. As per this statement, the deceased agreed that she would stay for some time in her in-laws'' house and thereafter will go with accused Rakesh. Ex. P-17 further demonstrates that the Panchayat had requested accused Roshini Devi not to ill-treat the deceased and they were directed to have affable relations. As per this statement, the deceased agreed that she would stay for some time in her in-laws'' house and thereafter will go with accused Rakesh. Ex. P-17 further demonstrates that the Panchayat had requested accused Roshini Devi not to ill-treat the deceased and they were directed to have affable relations. In fact, Ex. P-17 neither reflects that the accused persons had ever subjected the deceased to criminal cruelty, as ingrained under Section 498-A IPC , nor it shows that accused persons gave beatings to the deceased. 13. Pw-6, Rikhi Ram (grand father of the deceased) has deposed that the deceased told him that accused Rakesh used to beat her and accused Roshini Devi used to torture her. He has further deposed that accused persons demanded money to start private business. Accused Rakesh came to their house and they told him that they are unable to pay the money, as they are poor persons. Despite requests, the accused persons did not desist from maltreating the deceased. Accused Roshni Devi moved an application before the panchayat, wherein the matter was compromised. He has deposed that before the panchayat accused Roshni Devi proclaimed that after the death of the deceased she would remarry accused Rakesh within fifteen days. Subsequently, the deceased was taken by accused Rakesh to Jallandhar, where also she was given beatings. From Jallandhar accused Rakesh and the deceased came to their house and accused Rakesh was again made to understand. On 5th December, at about 07:00 a.m., they were informed telephonically that the deceased had been killed, so they rushed to the house of the accused persons, where they found gory dead body of the deceased, which was lying in the varandah. This witness, during the course of investigation, on 19th January, handed over a blood stained towel to the police. As per this witness, the deceased handed over the same to him in the month of December, as they did not believe her. The deceased told that both the accused persons gave beatings to her and as a result blood started oozing. This witness, in his cross-examination, has deposed that accused Roshni Devi moved an application before the panchayat. He has further deposed that till the death of the deceased, they did not move any complaint anywhere against the accused persons. The deceased told that both the accused persons gave beatings to her and as a result blood started oozing. This witness, in his cross-examination, has deposed that accused Roshni Devi moved an application before the panchayat. He has further deposed that till the death of the deceased, they did not move any complaint anywhere against the accused persons. This witness has admitted that after the marriage mostly the deceased stayed either in her in-laws'' house or with accused Rakesh at Jallandhar. 14. Pw-5, Gopal Dass, uncle of the deceased is another important witness. He has deposed that both the accused persons used to give beatings to the deceased. He has also deposed like PW11 and PW-6 that accused Roshni Devi moved an application before the panchayat and the matter was compromised in the panchayat. As per this witness, the deceased told him that compromise is not acceptable to her, as the accused persons used to beat her. However, this fact did not find mention in the statement of this witness given to the police. Ex. P-17 nowhere reflects that the compromise was not acceptable to the deceased. Thus, the statement of this witness does not seem to be correct. This witness, like PW-6, Rikhi Ram, deposed that accused Roshni Devi proclaimed before the panchayat that in case the deceased dies, she will remarry accused Rakesh within fifteen days. However, the testimonies of PW-6 and PW-5 to this effect seem to be an afterthought, as Ex. P-17 nowhere reflects that accused Roshni Devi proclaimed that in case the deceased dies, she will remarry accused Rakesh in fifteen days. 15. In the case in hand, after scrutinizing the testimonies of PWs 11, 6 and 5, it can be safely held that due to usual quarrels between accused Rakesh and deceased, their relations became sour. The versions of these PWs seem an afterthought, as the statements of these PWs were recorded by the police after the death of the deceased. The testimonies of these PWs can also not believed, as they deposed in calibration that accused Roshni Devi proclaimed before the panchayat that after the death of the deceased she would remarry accused Rakesh within fifteen days. However, Ex. P-17, compromise effected before the panchayat, nowhere shows that accused Roshni proclaimed like this. Again, as per the testimonies of these witnesses, the accused persons used to give beatings to the deceased, but Ex. However, Ex. P-17, compromise effected before the panchayat, nowhere shows that accused Roshni proclaimed like this. Again, as per the testimonies of these witnesses, the accused persons used to give beatings to the deceased, but Ex. P-17 does not even remotely points out that accused persons subjected the deceased to criminal cruelty, as ingrained under Section 498-A IPC. In nitty-gritty, the testimonies of PWs 11, 6 and 5 seem an afterthought and far from factual position. 16. Indeed, PWs 11, 6 and 5 were the best persons to prove that the accused persons subjected the deceased to criminal cruelty, but their versions seem unreliable. The testimonies of these PWs, if read conjunctively, only establish that there had been some misunderstanding amongst accused Rakesh and the deceased due to some usual quarrels. Ex. P-17 nowhere reflects that the deceased was unwilling or not happy with the compromise entered into between her and the accused persons. In fact accused Roshni Devi cannot be held liable for the offence punishable under Section 498-A IPC on the slippery testimonies of PWs 11, 6 and 5. PW-6, Rikhi Ram, categorically deposed that the deceased gave him a towel stained with blood, as the accused gave beatings to her, and he gave this towel to the police. However, PW-11, Vidya Devi, has not stated so and thus there is complete mismatch even amongst the family members, viz PW-11 Vidya Devi (mother of the deceased) and PW-6, Rikhi Ram (grand father of the deceased). 17. In addition to the above evidence, there is no other evidence available to prove that the accused Roshni Devi subjected the deceased to cruelty and she abetted accused Rakesh to give cruel treatment to the deceased. In fact the available evidence nowhere establishes that the deceased was beaten up for not bringing dowry. The prosecution has failed to prove any specific instance of cruelty given by accused Roshni Devi. So, in absence of any cogent, convincing and reliable evidence qua specific instance of cruelty, it is not safe to hold that accused Roshni Devi subjected the deceased to cruelty and she abetted accused Rakesh to give cruel treatment to the deceased. 18. In view of what has been discussed hereinabove, the offence under Section 498-A IPC has not been established against accused Roshni Devi, as the evidence of key prosecution witnesses speaks differently. 19. 18. In view of what has been discussed hereinabove, the offence under Section 498-A IPC has not been established against accused Roshni Devi, as the evidence of key prosecution witnesses speaks differently. 19. Now, the hands of clock turn to Section 109 IPC. The prosecution has alleged that accused Roshni Devi abetted accused Rakesh Kumar to subject the deceased to criminal cruelty, but as discussed hereinabove, the offence under Section 498A IPC has not been established against accused Roshni Devi, so there cannot be any abetment, as alleged by the prosecution. Moreover, there is no evidence on record, which could conclusively establish that accused Roshni Devi abetted accused Rakesh to subject the deceased to criminal cruelty, as envisaged under Section 498A IPC. 20. As already noticed, the appeal against accused Rakesh stands abated and the appeal only survives against accused Roshni Devi for the commission of the offences punishable under Section 498A read with Section 109 IPC, but the relevant evidence, which has come on record, could not stand the test of veracity and truthfulness. As such, the prosecution case against accused Roshni Devi fails on the first count, therefore, there is no real need to delve into rest the evidence. 21. In view of the above, there is nothing on record to prove the guilt of accused Roshni Devi, as the statements of key prosecution witnesses, PW-11, Vidya Devi (mother of the deceased), PW-6, Rikhi Ram (grand father of the deceased) and PW-5, Gopal Dass (uncle of the deceased) do not inspire confidence. The statements of these prosecution witnesses suffer from inconsistencies and contradictions. These witnesses seem to have made improvements in their statements, thus their statements do not have enough force to convince that accused Roshni Devi subjected the deceased to criminal cruelty and abetted accused Rakesh to subject the deceased to cruelty. 22. As discussed hereinabove, the prosecution has failed to establish the offences against accused Roshni Devi under Section 498A IPC read with Section 109 IPC. The prosecution could not prove the guilt of accused Roshni Devi beyond the scope of reasonable doubt. 23. The Hon''ble Supreme Court in T.Subramanian vs. State of Tamil Nadu , (2006) 1 SCC 401 , has held that where two views are reasonably possible from the very same evidence, prosecution cannot be said to have proved its case beyond reasonable doubt. 24. 23. The Hon''ble Supreme Court in T.Subramanian vs. State of Tamil Nadu , (2006) 1 SCC 401 , has held that where two views are reasonably possible from the very same evidence, prosecution cannot be said to have proved its case beyond reasonable doubt. 24. In Chandrappa vs. State of Karnataka , (2007) 4 SCC 415 , the Hon''ble Supreme Court has culled out the following principles qua powers of the appellate Courts while dealing with an appeal against an order of acquittal: "42. From the above decisions, in our considered view, the following general principles regarding powers of the appellate court while dealing with an appeal against an order of acquittal emerge: 1. An appellate court has full power to review, reappreciate and reconsider the evidence upon which the order of acquittal is founded. 2. The Code of Criminal Procedure, 1873 puts no limitation, restriction or condition on exercise of such power and an appellate court on the evidence before it may reach its own conclusion, both on questions of fact and of law. 3. Various expressions, such as, ''substantial and compelling reasons'', ''good and sufficient grounds'', ''very strong circumstances'', ''distorted conclusions'', ''glaring mistakes'', etc. are not intended to curtail extensive powers of an appellate court in an appeal against acquittal. Such phraseologies are more in the nature of ''flourishes of language'' to emphasise the reluctance of an appellate court to interfere with acquittal than to curtail the power of the court to review the evidence and to come to its own conclusion. 4. An appellate court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial Court. 5. If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial Court." 25. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial Court. 5. If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial Court." 25. In view of what has been discussed hereinabove and on the basis of material, which has come on record, it is more than safe to hold that the prosecution has failed to prove the guilt of accused Roshni Devi beyond reasonable doubt and the findings of acquittal, as recorded by the learned Trial Court, need no interference, as the same are the result of appreciating the facts and law correctly and to their true perspective. Accordingly, the appeal, which sans merits, deserves dismissal and is dismissed. 26. In view of the above, the appeal, so also pending application(s), if any, stand(s) disposed of.