Punjab-Haryana High Court
Jagdish Chander vs State Of Haryana on 29 October, 1987
Equivalent citations: 1988CRILJ1048
JUDGMENT Ujagar Singh, J.
1. As per prosecution evidence, Mst. Savitri Devi (deceased) was married to the appellant in the year 1980. After about four years of this marriage, she was brought to Civil Hospital Rohtak at about 2.30 a.m. on 31st July, 1984 and a ruqa Ex. PK was sent by the doctor at 3.30 a.m. to the IP charge, Police Post, Medical College, Rohtak. At about 7.10 a.m. the same day, she succumbed to her injuries and another ruqa (sic). PL was sent by the doctor to the said police Post. During enquiry, no cognizable case was made out and the proceedings were almost dropped. On 3rd Aug., 1984, statement of Kashmiri Lal, son of Aru Singh Arora, resident of 280, Ward No. 12, Mohalla Kassiwala, Hissar, was recorded and the same is Ex. PE. According to this statement the prosecution story was that Kashmiri Lal had three brothers, the eldest of them being Nand Kishore, the one younger to him was Bhagwan Dass and the next was Hukam Chand. Kashmiri Lal was the youngest. Mst. Savitri Devi, aged about 21 years, was the younger sister of Kashmiri Lal. After her marriage to the appellant, a daughter was born to them and was about three years of age at the time of occurrence. Mst. Savitri Devi was pregnant for the last about 6/7 months. The appellant used to take liquor daily and harass her and give her beatings. She complained to Kashmiri Lal and his brothers about this several times and they tried to prevail upon the appellant and his father but all in vain. On 31st July, 1984. Nebh Raj, nephew of Kashmiri Lal, gave information to Kashmiri Lal and others at Hissar whereupon all the four brothers reached Rohtak. It was also learnt that Savitri Devi was being harassed on account of inadequate dowry. On reaching Rohtak, the four brothers came to know that Smt. Savitri Devi had been set on fire and the appellant misbehaved with them. It was also revealed that she did not herself put her on fire but had been burnt. This statement was got recorded and heard by Kashmiri Lal who signed it in Hindi after admitting its correctness. It was further said in this statement that uptill then, Kashmiri Lal remained busy verifying the facts or details of the incident. This statement is Ex. PE and the same was sent for registration of a case to the police station and a case was registered Under Section 306, I.P.C. Thereafter, the investigation was started and after its completion, challan was put in and the appellant committed for trial before the Sessions Court,
2. The trial Court framed charge Under Section 302, IPC, against the appellant and during the trial as many as 17 witnesses were examined by the prosecution.
3. P. W. 1 Dr. D. K. Sharma conducted the post-mortem examination and observed as under:
There were burns from scalp to the toes. Scalp hair, auxiliary, pubic hair were all burnt. The subcutaneous tissue was exposed Peeling of the skin at places over the body was there, with hundred per cent burns at places. They were deep burns.
In the opinion of the doctor, the cause of death was shock and toxaemia as a result of burns which were all ante-mortem and sufficient to cause death in the ordinary course of nature. The witness further stated that it was a case of 100 per cent burns and there was a smell of kerosene oil. According to P.W. 11 Dr. Subodh Kumar, Mst. Savitri Devi was brought in the Casualty Ward of the hospital by the appellant on 31st July, 1984, at 2.40 a.m. and she was examined at 2.45 a.m. She was found to be semi-conscious, delirous, not answering to any question, had unrecordable blood pressure, the pulse being not pulpable. He sent ruqas Ex PK and PL to the aforesaid Police Post. According to the witness further, the patient was smelling kerosene oil, as mentioned in the medico-legal report and she was not in a fit condition to make any statement as she was in a semi-concsious state. Ex. PM/1 is the endorsement made by this witness with respect thereto on police request Ex. PM.
4. The prosecution cited two eyewitnesses out of whom Ved Parkash was given up as won over while Shmt. Bhagwan Devi was examined as PW 13 who stated that she was living as a tenant along with her son in a room on the same floor as the appellant. According to the witness, no quarrel ever took place between the appellant and his wife in her presence and they lived peacefully; that she was present on the day of occurrence at about 10.30 PM and the appellant told his wife to prepare meals immediately he came to the house and he went downstairs with his daughter. When he came upstairs after some time, he shouted all of a sudden and the witness came out of her room to find the appellant putting a blanket on the body of his wife Mst. Savitri Devi. She was got declared hostile but did not favour the prosecution even when she was confronted with portions of her previous statement Ex. PN. In answer to further cross-examination by the Public Prosecutor she admitted that Smt. Savitri Devi had enquired of the appellant as to why he had taken liquor on the fateful day. Shmt. Savitri Devi used to prepare evening meals at about 6.00/7.00 p.m. and the appellant used to come to the house very late and until his arrival she would not take her meals. To a Court question she denied knowledge of the origin of the occurrence and she could not say if it was due to bursting of a stove or anything else. On cross-examination by the defence she stated that the appellant brought a three-wheeler tempo and took Mst. Savitri Devi to the hospital and that she had taken her share out of the property of her in-laws. In this state of affairs, the trial Court rightly came to the conclusion that there was no reliable and trustworthy evidence on record to prove if the appellant had burnt his wife Smt. Savitri Devi by pouring kerosene oil on her and committed the offence Under Section 302, Indian Penal Code.
5. The trial Court also rightly held that no reliance could be placed on the prosecution version that a few months before the occurrence the appellant had demanded some money from the brother of the deceased Smt. Savitri Devi. This finding was in respect of the statement made by Kashmiri Lal PW 4 that a couple of months prior to the occurrence, the appellant had demanded a sum of Rs. 1,500/-, Rs. 2,000/-.
6. The information about the occurrence was sent to Khem Chand, a cousin of the deceased, who lived nearby and has been examined as P. W. 5. He stated that he went to the Civil Hospital, Rohtak and has tried to show that Shmt. Savitri Devi called him and told him that she had been burnt by her husband and she died 10-15 minutes thereafter. This statement of Khem Chand PW has rightly not been believed in view of the statement of Dr. Subodh Kumar PW 11 who had found her in a semi-conscious state and not answering to any question, as also clearly stated that she was not fit to make any statement and had suffered 100 per cent burns all over her body.
7. The death took place at 7.10 a.m. of 31st July, 1984, vide ruqa Ex. PL, and the information had already reached Kashmir Lal and others at Hissar. Kashmiri Lal PW 4 and Shmt. Kanta Rani PE 7 (the wife of the brother of Kashmiri Lal PW 4) along with others came to Rohtak at about 10/10.30 a.m. According to Shmt. Kanta Devi PW, all of them attended the cremation of Shmt. Savitri Devi which took place in the evening of that day and then they went back to Hissar, the same night. It was only during the night intervening 2nd and 3rd Aug., 1984, that Kashmiri Lal came to the police post and made a statement Ex. PE at 12.05 a.m. and the case was registered in Police Station City Rohtak on the endorsement Ex. PE72. According to PW 16, Sub-Inspector Balbir Singh, before 3rd of August, 1984, no relative of the deceased approached him about this occurrence nor did he refused to record the statement of any such person. He further stated that he did not receive any complaint bearing endorsement of the Chief Minister and that neither the Supdt. of Police nor the Asstt. S.P. visited the spot till 3rd Aug., 1984. This statement of PW 16 negatives the assertions of Kashmiri Lal and Kanta Rani PWs when it is stated by them that they approached the police for the registration of a case but nobody listened to them and that on 2nd August, 1984, the Chief Minister had come to Hissar when they met him; that the Chief Minister gave them a letter addressed to the S.P., Rohtak, and then they went to Rohtak and met the latter who deputed the A.S.P. who visited the house of the appellant; that the A.S.P. talked over the matter to the S.H.O. concerned and on the former's direction Kashmiri Lal PW 4 went to the police post and made statement Ex, PE. Kashmiri Lal and Shmt. Kanta Rani PWs also stated that they had taken a written application with them while going to the Chief Minister who passed an order on that application itself and then they went to Rohtak on 2nd August, 1984 and handed over the orders to the S.P. Thus, there is nothing on the file to explain the silence about the present allegations right from Kashmiri Lal PW 4 and others reached Rohtak until his statement was recorded at 12.05 a.m. on 3rd August, 1984. This delay having been not explained - rather the one furnished having been falsified by PW 16 Balbir Singh, Sub-Inspector - one is left to imagine as to what PW 4 Kashmiri Lal and others had been doing till the registration of the case. This lapse of about 60 hours from the time of the incident could be enough to come out with any version whatsoever. The trial Court wrongly ignored this delay by holding that the same had been explained satisfactorily.
8. The trial Court rightly held that there was no evidence on the record to show the commission of the murder of Shmt. Savitri Devi by the appellant by pouring kerosene oil on her and then by burning her and, therefore, the appellant was not convicted Under Section 302, IPC.
8A. The trial Court relying upon the provisions of newly-added Section 113A of the Evidence Act has come to the conclusion that in the circumstances of the case the appellant was guilty Under Section 306, IPC, read with Section 113A ibid.
9. After coming to the conclusion that the appellant was not guilty Under Section 302, IPC, he could not record the conviction under Section 306, IPC. It has been repeatedly held by this Court that harassment or use of hot words against the deceased whereafter she committed suicide does not amount to abetment and, therefore, no offence was made out Under Section 306 IPC. One such precedent, Surinder Kumar v. State of Punjab (1984) 1 Chand LR (Cri) 284, has been mentioned by the trial Court but in spite of that it held that there was no legal bar to convict the accused Under Section 306, IPC even though charged Under Section 302, IPC. This conclusion of the trial Court is not warranted by law. Smt. Savitri Devi committed suicide or may be this was due to bursting of a stove but this was not as a result of any instigation or incitement by the appellant. She was probably a sentimental women and did not like the drinking habits of the appellant who cannot be held responsible for her suicide especially when charge Under Section 498A, IPC was refused to be framed by the trial Court by a specific order dt. Aug., 13, 1985. Section 498A, IPC which has been newly added by virtue of the Criminal Law (2nd Amendment) Act, 1983, reads as follows:
Husband or relative of husband of a woman subjecting her to cruelty. Section 498A. 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 extent to three years and shall also be liable to fine.
Explanation.- For the purposes 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 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.
According to this section, a husband or any of his relatives subjecting the wife to cruelty is liable to punishment with an imprisonment for a term which may extend up to three years and shall also be liable to fine. The word 'cruelty' has been defined by Sub-clauses (a) and (b). By that very Act, Section 113A has been newly added to the Indian Evidence Act, 1872, which reads as follows ; -
Presumption as to the abetment of suicide by a married woman. Section 113A. When the question is whether the commission of suicide by a woman had been abetted by her husband or any relative other husband and it is shown that she had committed suicide within a period of seven years from the date of her marriage and that her husband or such relative of her husband had subjected her to cruelty, the court may presume, having regard to all the other circumstances of the case, that such suicide had been abetted by her husband or by such relative of her husband.
Explanation.- For the purposes of this section, "cruelty" shall have the same meaning as in Section 498A of the Penal Code.
A bare reading of these newly-added provisions of law makes it clear that when the husband or any relative of his is guilty, of cruelty to the wife, he or she is punishable Under Section 498A, IPC and in the presence of such cruelty, a presumption can be raised for abetment of suicide if the same is committed within a period of seven years from the date of her marriage. In nut-shell, the first requisite for attracting the presumption Under Section 113A of the Evidence Act, it must be proved that the wife was subjected to 'cruelty' as defined in Section 498A, IPC. In the present case, the trial Court has relied only on the wilful conduct of the appellant in taking liquor almost daily despite constant protests by his wife and his habit of coming to home late at night. But this fact in this case does not fulfil the essential ingredients of 'cruelty' as given in Section 498A, IPC.
10. On 13th Aug., 1985, PW 1 Dr. D. K. Sharma, PW 2 Gopi Chand, PW 3 Dhani Ram Saini, PW 4 Kashmiri Lal, PW 5 Khem Chand, PW 6 Bhagwan Dass, PW 7 Kanta Rani, PW 8 Chand Karan, PW 9 Rawat Singh and PW 10 Tara Chand were examined by the trial Court and an application was made for framing a charge Under Section 498A, IPC but this application of the Public Prosecutor was rejected by the trial Court vide orders of the same date made after hearing counsel for both the parties, holding that sufficient ground for framing an additional charge Under Section 498A IPC was not made out and that order became final and has not been challenged so far by the prosecution. In view of this order of the trial Court, the same matter cannot be re-agitated on the ground that there was cruelty on the part of the appellant towards Shmt. Savitri Devi (deceased) as held by the trial Court. The alleged cruelty having been excluded by the said order, the same cannot be taken into consideration for raising a presumption under the newly-added Section 113A. of the Evidence Act, as the word cruelty used in this section is the same as defined Under Section 498A, IPC.
11. In view of the above observation this appeal is accepted and the appellant is acquitted of the charges. His bail bonds shall stand cancelled. Fine, if paid, be refunded to him.