Himachal Pradesh High Court
State Of Himachal Pradesh vs Jatinder Kumar Son Of Shri Purshotam ... on 12 August, 2015
Author: P.S.Rana
Bench: Sanjay Karol, P.S.Rana
IN THE HIGH COURT OF HIMACHAL PRADESH, AT SHIMLA
Cr. Appeal No. 343 of 2010
Judgment reserved on: 23rd June 2015
.
Date of Judgment: 14th July, 2015
_______________________________________________________________
State of Himachal Pradesh .....Appellant.
Vs.
Jatinder Kumar son of Shri Purshotam Chand and others
...Respondents.
of
Coram:
rt
Hon'ble Mr. Justice Sanjay Karol, Judge.
Hon'ble Mr.Justice P.S.Rana, Judge.
Whether approved for reporting1?. Yes.
For the Appellant: Mr. Ashok Chaudhary Additional
Advocate General with Mr.
V.S.Chauhan, Additional Advocate
General and Mr.J.S.Guleria, Assistant
Advocate General.
For the Respondents: Mr. Anup Chitkara, Advocate.
P.S.Rana, J.
JUDGMENT: Present appeal is filed against the judgment of acquittal passed by learned Additional Sessions Judge Fast Whether reporters of the Local papers are allowed to see the judgment?. Yes.
::: Downloaded on - 15/04/2017 18:44:33 :::HCHP 2Track Court Kangra at Dharamshala in RBT SC No. 36- K/VII/06/05 decided on dated 8.1.2010.
.
BRIEF FACTS OF THE PROSECUTION CASE:
2. Brief facts of the case as alleged by prosecution are that marriage of deceased Neelam Kumari was solemnized with co-accused Jatinder in 2003. It is alleged by prosecution that after marriage accused persons beaten the deceased in of her matrimonial house and also ill-treated the deceased in her matrimonial house. It is alleged by prosecution that on the intervening rt night of 19/20th February 2005 committed suicide by way of jumping into a rivulet. It is deceased alleged by prosecution that co-accused Jatinder Kumar husband of deceased did not allow the deceased to meet her parents and also did not allow the deceased to telephone her parents. It is alleged by prosecution that co-accused Jatinder Kumar took the deceased to Ludhiana in the year 2003 and had tortured her. It is further alleged by prosecution that on dated 18.2.2005 deceased Neelam Kumari had telephoned her mother from Kangra and told that accused persons had been regularly torturing her. It is alleged by prosecution that on dated 18.2.2005 at about 9.30 PM father of deceased Neelam Kumari was informed by accused persons that Neelam Kumari ::: Downloaded on - 15/04/2017 18:44:33 :::HCHP 3 had left her matrimonial house and was not traceable. It is alleged by prosecution that thereafter dead body of deceased .
Neelam Kumari was found in Hattian rivulet. It is also alleged by prosecution that at the time of death of deceased Neelam Kumari deceased was carrying pregnancy of 8/9 months. It is alleged by prosecution that in the year 2004 with the intervention of local Panchayat a compromise was also of effected between Neelam Kumari and accused persons. It is alleged by prosecution that after recovery of dead body of rt deceased Neelam Kumari inquest reports Ext.PW6/A and Ext.PW6/B were prepared and photographs Ext.PW9/A-1 to Ext.PW9/A-12 and negatives of photographs Ext.PW9/A-13 to Ext.PW9/A-24 were taken. It is alleged by prosecution that thereafter Investigating Officer moved application Ext.PW9/B for conducting the post mortem of deceased Neelam Kumari and thereafter post mortem report Ext.PY and medical report Ext.PZ were obtained. It is alleged by prosecution that Investigating Officer also prepared spot map Ext.PW9/D.
3. Charge was framed against the accused persons by learned trial Court on dated 31.12.2007 under Sections 498-A and 306 IPC. Accused persons did not plead guilty and claimed trial.
::: Downloaded on - 15/04/2017 18:44:33 :::HCHP 44. Prosecution examined the following witnesses in support of its case:-
.
Sr.No. Name of Witness
PW1 Punjab Singh
PW2 Satya Devi
PW3 Saneh Lata
of
PW4 Des Raj
PW5 Swarup Chand
rt
PW6 Dalip Chand
PW7 Ram Gopal
PW8 Rakesh Kumar
PW9 Daya Nand Sharma
DW1 Dr. Kiran Kaushal
DW2 Sanjay Kumar
DW3 Dr. Sanjay Arora
4.1 Prosecution also produced following piece of
documentary evidence in support of its case:-
Sr.No. Description:
Ex.PW7/A. Copy of FIR No. 61 of 2005
::: Downloaded on - 15/04/2017 18:44:33 :::HCHP
5
Ex.PW8/A. Copy of Rapat No.5
Ex.PW8/B Copy of Rapat No. 1
dt.20.2.2005
.
Ext.PW1/A Statement under Section 154
Cr.P.C. of complainant
Ex.PW7/B Endorsement on ruka
Ext.PW9/D Spot map
Ext.PW9/B Application for post mortem
Ex.PW6/A Inquest paper
Ext.PY Post mortem report
Ext.PZ Letter of queries by the police
of
Ext.PW9/A-1 Photographs of dead body of to Neelam Kumari Ext.PW9/A-
12
Ext.DW1/A
rt Prescription card of Dr.B.L.
Kapoor Hospital
Ext.DW1/B -do-
Ext.DW1/C OPD slip
Ext.D1 to Test report's receipt etc.
Ext.D15
Ext.DW3/A Brain analysis reports of Neelam Ext.DW3/G
5. Learned trial Court acquitted all accused persons qua criminal offences under Sections 498-A and 306 IPC.
6. Feeling aggrieved against the judgment passed by learned Trial Court State of H.P. filed present appeal under Section 378 of Code of Criminal Procedure.
7. We have heard learned Additional Advocate General appearing on behalf of the State of H.P. and learned ::: Downloaded on - 15/04/2017 18:44:33 :::HCHP 6 Advocate appearing on behalf of the respondents and also perused the entire record carefully.
.
8. Point for determination in present appeal is whether learned trial Court did not properly appreciate oral as well as documentary evidence placed on record and whether learned trial Court had committed miscarriage of justice.
9. ORAL EVIDENCE ADDUCED BY PROSECUTION:
of 9.1. PW1 Punjab Singh has stated that deceased Neelam Kumari was his daughter. He has stated that in the rt month of March 2002 the deceased was married to accused Jatinder. He has stated that before marriage his daughter was doing Nursing training at Chandigarh. He has stated that after marriage deceased stayed in her matrimonial house for about two months. He has stated that he had paid the expenses of remaining period of training and sent the deceased daughter to complete the training. He has stated that after completion of training his deceased daughter went to the house of accused persons. He has stated that during training period whenever deceased used to go to the house of accused they used to torture her by demanding dowry. He has stated that co-accused Jatinder was working at Ludhiana and he took the deceased to Ludhiana. He has stated that co-accused Jatinder ::: Downloaded on - 15/04/2017 18:44:33 :::HCHP 7 did not allow his daughter to telephone her parents and he used to torture her. He has stated that whenever his daughter .
used to telephone him she used to inform that accused persons have beaten and tortured her. He has stated that he went to Ludhiana twice but due to non-availability of address he could not find the residence of deceased daughter. He has stated that thereafter he came back from Ludhiana and talked of to the parents of co-accused Jatinder but co-accused Krishna Devi and co-accused Purshotam told that they had no idea rt about the residence of co-accused Jatinder at Ludhiana. He has stated that on dated 18.2.2005 his deceased daughter telephoned his wife that she came back in her matrimonial house at Kangra. He has stated that his deceased daughter told his wife that all three accused persons used to torture her. He has stated that again on 9.30 PM co-accused Purshottam telephoned his wife that his deceased daughter left her matrimonial house and was not traceable. He has stated that on the next morning he and his wife went to house of accused and searched the deceased but she could not be traced. He has stated that thereafter dead body of deceased was found in Hattian rivulet. He has stated that at the time of death the deceased was carrying pregnancy of 8/9 months. He ::: Downloaded on - 15/04/2017 18:44:33 :::HCHP 8 has stated that arms of deceased were broken and there was injury on head of deceased. He has stated that he got .
suspicious that all accused persons have killed the deceased and threw dead body in rivulet. He has stated that police visited the spot and his statement Ext.PW1/A was recorded.
He has stated that he did not lodge any complaint regarding torture because he intended to settle his deceased daughter of in her matrimonial house. He has denied suggestion that deceased was suffering from mental depression before rt marriage. He has denied suggestion that he did not disclose the ailment of deceased to accused persons before marriage.
He has denied suggestion that due to mental disorder at Ludhiana his deceased daughter used to go to the premises of neighbourer after crossing the walls. He has denied suggestion that accused persons did not torture the deceased.
He has denied suggestion that accused persons have not beaten the deceased. He has denied suggestion that accused persons did not demand any dowry. He has denied suggestion that deceased had slipped due to mental ailment and also denied suggestion that deceased had jumped into the rivulet due to mental ailment.
::: Downloaded on - 15/04/2017 18:44:33 :::HCHP 99.2 PW2 Satya Devi has stated that deceased was her daughter who was married to co-accused Jatinder. She has .
stated that her daughter had qualified B.A. examination at the time of her marriage and she was performing Nursing training at Mohali. She has stated that at the time of marriage deceased had completed half period of training. She has stated that after marriage when her daughter came to her of parental house she directly narrated to her that accused persons have demanded one car and ` 1 lac (Rupees one lac rt only) in cash. She has stated that her daughter had directly told her that accused persons present in Court used to torture the deceased and used to beat the deceased and also used to taunt her. She has stated that Jitender took the deceased to Ludhiana where she stayed for about nine months. She has stated that co-accused Jitender did not allow the deceased to talk with her mother. She has stated that about one week prior to the death of her daughter, her daughter came to matrimonial house from Ludhiana. She has stated that on telephone the deceased was weeping and deceased told that she was in danger to her life. She has stated that thereafter dead body of deceased was found in Hattian rivulet. She has stated that her daughter was killed by accused persons. She ::: Downloaded on - 15/04/2017 18:44:33 :::HCHP 10 has denied suggestion that deceased was suffering from mental ailment before her marriage. She has denied .
suggestion that due to mental ailment while crossing walls deceased had fallen and thereafter she developed some problem and thereafter she was brought and admitted in Nursing Home at Ludhiana. She has admitted that due to intervention of local Panchayat compromise was effected with of accused persons. She has denied suggestion that deceased was also medically treated for her mental treatment at rt Amritsar. She has denied suggestion that accused persons have not tortured the deceased. She has denied suggestion that accused have not beaten the deceased. She has denied suggestion that accused persons have not demanded any dowry. She has denied suggestion that due to mental ailment deceased had jumped into the rivulet.
9.3 PW3 Sneh Lata has stated that in the year 2004 her father used to reside at Chandigarh. She has stated that her father was Superintendent in D.C. office. She has stated that Satya Devi is her husband's sister. She has stated that she was performing Nursing training along with deceased Neelam at Mohali (Chandigarh). She has stated that deceased Neelam was married with co-accused Jitender and deceased ::: Downloaded on - 15/04/2017 18:44:33 :::HCHP 11 had continued her training after marriage. She has stated that in August 2004 she went to her father at Chandigarh and .
thereafter she went to her niece Sushma at Ludhiana. She has stated that she came to know that deceased Neelam and co-
accused Jitender were also residing at Ludhiana and thereafter she telephoned them. She has stated that co-accused Jitender dis-connected the telephone but she again telephoned him of and inquired about his address but he did not disclose the address. She has stated that in the evening co-accused rt Jitender and deceased Neelam came to meet her at Sushma's residence. She has stated that she inquired from co-accused Jitender as to why he did not allow deceased Neelam to talk with her parents. She has stated that thereafter co-accused Jitender replied that he would torture the parents of deceased Neelam in the same manner. She has stated that thereafter she inquired from co-accused Jitender as to why he did not allow the deceased to go to her parents. She has stated that thereafter co-accused Jitender told that he would not allow the deceased Neelam to go to her parents. She has stated that co-
accused Jitender also told that after delivery of child he would leave deceased Neelam. She has stated that thereafter she took deceased Neelam to another room and inquired from ::: Downloaded on - 15/04/2017 18:44:33 :::HCHP 12 deceased. She has stated that thereafter deceased told that accused was beating her and torturing her. She has stated .
that deceased told her that co-accused Jitender used to lock the premises from outside whenever he used to go out. She has stated that deceased also told that accused had also demanded car. She has stated that thereafter she came to know about death of deceased Neelam. She has stated that of dead body of deceased was lying in the rivulet. She has denied suggestion that deceased could not complete her rt training and she has denied suggestion that deceased could not qualify her exam. She has denied suggestion that deceased was not good in her studies. She has denied suggestion that deceased did not disclose about torture and maltreatment to her. She has denied suggestion that deceased did not tell her about demand of one car. She has denied suggestion that deceased was suffering from mental ailment. She has denied suggestion that because deceased was her niece she had given false statement.
9.4 PW4 Des Raj member of Gram Panchayat Mumta has stated that in the year 2004-05 he was member of Gram Panchayat Mumta and in the year 2004 he was called by Punjab Singh to have a discussion with in-laws of deceased ::: Downloaded on - 15/04/2017 18:44:33 :::HCHP 13 Neelam. He has stated that he went to the spot where all three accused persons were present and compromise was .
effected between the parties and thereafter deceased was sent with co-accused Jitender to his in-laws house. He has stated that deceased told that she would not join the company of accused persons. He has stated that deceased told him that accused persons were troubling her. He has denied suggestion of that neither deceased nor her father told him that accused persons were troubling the deceased.
9.5 rt PW5 Swarup Chand has stated that he remained Vice President of G.P. Mumta from 2000 to 2005. He has stated that he is mason by profession and he had carried out the construction work of house of Punjab Singh for 2/2½ years. He has stated that during those days Neelam was studying in college. He has stated that Punjab Singh told him that his deceased daughter used to remain upset because she was troubled by her in-laws. He has stated that thereafter Punjab told that deceased had expired and he had also visited the spot. He has denied suggestion that Punjab Singh did not inform him that his daughter was troubled by her in-laws.
9.6 PW6 Dalip Chand has stated that on dated 20.2.2005 he and Sanjay remained associated with police ::: Downloaded on - 15/04/2017 18:44:33 :::HCHP 14 during investigation of case. He has stated that dead body of deceased took out from Hattian rivulet with the aid of fire .
brigade ladder in his presence. He has stated that parents of deceased were also present. He has stated that dead body was identified by parents of deceased. He has stated that inquest reports Ext.PW6/A and Ext.PW6/B were prepared by police which were signed by him and Sanjay. He has stated of that behaviour of deceased was normal.
9.7 PW7 HC Ram Gopal has stated that on dated rt 20.2.2005 he was posted as MHC in P.S. Kangra and on dated 20.2.2005 he received ruka Ext.PW1/A containing endorsement of SI Dayanand. He has stated that he registered FIR Ext.PW7/A. He has stated that on the reverse of ruka Ext.PW1/A there is his endorsement within red encircle Ext.PW7/B. 9.8 PW8 Rakesh Kumar has stated that he has brought the rapat roznacha register of 2005. He has stated that in the year 2005 he was posted as M.C. P.S. Kangra. He has stated that co-accused Purshottam had lodged Rapat No. 5 dated 20.2.2005 in P.S. which is Ext.PW8/A. He has stated that dead body of deceased was found and rapat Ext.PW8/B ::: Downloaded on - 15/04/2017 18:44:33 :::HCHP 15 was recorded. He has stated that rapats are true copies of original.
.
9.9 PW9 Daya Nand Sharma Inspector has stated that in the year 2005 he was posted as SHO P.S. Kangra. He has stated that after lodging rapat Ext.PW8/A he sent HC Som Raj with complainant Purshottam Chand in search of deceased. He has stated that at about 1.30 PM he received the telephonic of call from Som Raj that dead body of deceased was found and thereafter rapat Ext.PW8/B was lodged. He has stated that rt thereafter he along with SHO and other police officials went to the spot. He has stated that he took photographs of dead body with his official camera and photographs are Ext.PW9/A-
1 to Ext.PW9/A-12 and its negatives are Ext.PW9/A-13 to Ext.PW9/A24 and thereafter he prepared inquest reports Ext.PW6/A and Ext.PW6/B. He has stated that he also prepared application for post mortem report. He has stated that he recorded the statement of Punjab Singh. He has stated that after visiting the spot he prepared spot map Ext.PW9/D and also recorded statements of witnesses as per their versions.
He has stated that he also obtained post mortem report of deceased and after completion of investigation he submitted the file to Inspector Sanjiv Chauhan who prepared the challan.
::: Downloaded on - 15/04/2017 18:44:33 :::HCHP 16He has stated that during investigation it was observed that deceased had stayed with co-accused Jitender at Ludhiana for .
8-10 months. He has stated that rivulet in which dead body of deceased was found was 70-100 feet deep.
10. Statements of accused recorded under Section 313 Cr.P.C. Accused have stated that deceased Neelam Kumari was under mental depression and her conduct was not of normal. Accused persons have stated that they did not maltreat deceased. Accused examined three witnesses in their defence.
rt
11. DW1 Dr. Kiran Kaushal B.L. Kapoor Memorial Hospital Ludhiana has stated that he is working in B.L. Kapoor Memorial Hospital Ludhiana since 2001 and he brought the record pertaining to treatment of deceased Neelam Kumari.
He has stated that deceased came in hospital for medical check-up on dated 20.12.2004 and deceased had visited the hospital on 27.12.2004 and 10.1.2005. He has stated that as per record deceased had alleged history of depression. He has stated that ultra sound of deceased was also conducted on dated 20.12.2004 and ultra sound report is Ext.DW1/B. He has stated that on dated 10.1.2005 deceased was admitted as indoor patient and was discharged on dated 14.1.2005. He ::: Downloaded on - 15/04/2017 18:44:33 :::HCHP 17 has stated that test reports of deceased are Ext.D1 to Ext.D5 and receipts are Ext.D6 to Ext.D14. He has stated that .
discharge card of deceased is Ext.D15. He has stated that he does not remember whether during the period of medical treatment he had observed any symptoms of depression. He has stated that as per record there was no such symptom.
11.1 DW2 Sanjay Kumar has stated that accused of persons are known to him. He has stated that house of accused is situated at the distance of 200-300 yards away rt from his house. He has stated that he is running a dairy farm in his house and he used to go to the house of accused to supply the milk. He has stated that Neelam wife of Jitender was also known to him. He has stated that he did not find the behaviour of deceased normal. He has stated that in his presence deceased was trying to dry the clothes in rain after washing them. He has stated that behaviour of accused towards Neelam was good. He has stated that accused persons belong to his caste. He has stated that he has got bartandari relations with accused persons on the occasion of marriages etc. He has denied suggestion that accused persons used to beat the deceased.
::: Downloaded on - 15/04/2017 18:44:33 :::HCHP 1811.2 DW3 Dr. Sanjay Arora has stated that he has qualified his M.D in psychiatry from Dayanand Medical College .
at Ludhiana in 1993. He has stated that he has the experience of 15 years and now he is posted as consultant psychiatric in Arora Neuro Psychiatric and Drug De-addiction Centre Amritsar. He has stated that deceased came for medical treatment on dated 14.7.2004 and report Ext.DW3/A was of issued by him and bears his signatures. He has stated that deceased visited again on dated 20.7.2004 and 30.7.2004. He rt has stated that he conducted brain mapping and neuro imaging tests. He has stated that when deceased approached him she was already on medical treatment. He has stated that deceased was suffering from psychiatric ailment. He has stated that he made the diagnose of schizophrenia and further stated that as pre result of said disorder at times patient becomes violent as sleep gets disturbed. He has stated that under this disorder patient may commit suicide. He has stated that he called the patient on 13.8.2004 for follow up checkup but deceased did not turn up. He has denied suggestion that on dated 14.7.2004 behaviour of deceased was normal. Again stated that he did not remember it exactly. He has admitted that schizophrenia is not by birth. He has admitted that there ::: Downloaded on - 15/04/2017 18:44:33 :::HCHP 19 is no recital in his record that deceased was having tendency to commit suicide.
.
12. Submission of learned Additional Advocate General appearing on behalf of the State that criminal offence under Section 498-A IPC is proved against co-accused Jatinder is accepted for the reasons hereinafter mentioned. It is proved on record that deceased resided with co-accused Jatinder at of Ludhiana for about nine months. PW1 Punjab Singh father of deceased has stated in positive manner that co-accused rt Jatinder took the deceased to Ludhiana and tortured her. PW1 Punjab Singh has stated in positive manner that deceased had told him directly that co-accused Jitender had beaten and tortured the deceased. Even co-accused Jitender did not give his residential address of Ludhiana to parents of deceased and even PW1 Punjab Singh could not locate the residential house of deceased and co-accused Jitender. As per testimony of PW1 Punjab Singh it is proved beyond reasonable doubt that co-
accused Jitender had given mental cruelty to deceased in her matrimonial house when deceased resided with co-accused Jitender at Ludhiana for nine months. Testimony of PW1 is trustworthy reliable and inspires confidence of Court qua ::: Downloaded on - 15/04/2017 18:44:33 :::HCHP 20 factum of mental cruelty upon deceased on the part of co-
accused Jitender.
.
13. PW2 Satya Devi mother of deceased has specifically stated that deceased Satya Devi resided at Ludhiana with co-accused Jitender for nine months and PW2 has specifically stated that co-accused Jitender did not allow the deceased to talk with her parents. PW2 has further stated of in positive manner that deceased has directly informed her in weeping condition that there was danger to her life. It is rt proved on record that due to intervention of Panchayat compromise was effected between the parties. It is held that as per testimony of PW2 Satya Devi it is proved on record beyond reasonable doubt that co-accused Jitender had caused mental cruelty to deceased when deceased resided with co-
accused Jitender at Ludhiana for nine months.
14. Even as per testimony of PW3 Sneh Lata it is proved on record that co-accused Jitender had caused mental cruelty to deceased when deceased was residing with co-
accused Jitender at Ludhiana for nine months. PW3 Sneh Lata has specifically stated that co-accused Jitender told in her presence that he would not allow deceased Neelam to go to her parents. PW3 has further stated in positive manner that ::: Downloaded on - 15/04/2017 18:44:33 :::HCHP 21 co-accused Jitender told that he would torture the parents of deceased Neelam. Court is of the opinion that same facts .
amount to mental cruelty upon the married woman. Court is of the opinion that married woman has legal right to visit her parental house after marriage within a reasonable time.
Denying the married woman to meet her parents amounts to mental cruelty as defined under Section 498-A IPC. Mental of cruelty on the part of co-accused Jitender is proved as per testimony of PW3. PW3 Saneh Lata has also stated in positive rt manner that co-accused Jitender in her presence told that after delivery of child he would leave Neelam. Court is of the opinion that above said words amount to mental cruelty to a married woman as defined under Section 498-A IPC.
Testimony of PW3 Sneh Lata is trustworthy reliable and inspires confidence of Court. There is no evidence on record in order to prove that PW3 has hostile animus against co-
accused Jitender.
15. Even PW4 Des Raj member of Gram Panchayat Mumta has stated in positive manner that deceased had told in his presence that accused was troubling her. Even deceased had told in presence of Ward member of Panchayat qua her mental cruelty. Mental cruelty on the part of co-
::: Downloaded on - 15/04/2017 18:44:33 :::HCHP 22accused Jitender is also proved as per testimony of PW4 Des Raj. Testimony of PW4 Des Raj is trustworthy reliable and .
inspires confidence of Court. There is no evidence on record in order to prove that PW4 has hostile animus against co-
accused Jitender at any point of time.
16. Even PW5 Swarup Chand has specifically stated in positive manner that father of deceased had told him that of deceased used to remain upset because she was troubled by her in-laws. Mental cruelty on the part of co-accused Jitender rt is proved as per testimony of PW5. Court is of the opinion that husband is under legal obligation to keep his married wife in proper manner in her matrimonial house. Court is of the opinion that it is the duty of husband to keep his wife in cordial atmosphere in matrimonial house so that no mental and physical torture should be caused to married woman in her matrimonial house. It is proved on record that dead body of deceased was found in Hattian rivulet. The dead body of deceased was found in rivulet which was deep. It is proved beyond reasonable doubt that deceased was found dead when deceased was pregnant of 8-9 months. It is proved on record that deceased had committed suicide within three years of her ::: Downloaded on - 15/04/2017 18:44:33 :::HCHP 23 marriage. Even as per post mortem report deceased had died due to ante-mortem head injury.
.
17. Submission of learned Additional Advocate General appearing on behalf of State that criminal offence under Section 498-A IPC is also proved against co-accused Smt.Krishna Devi and co-accused Shri Purshottam Chand is rejected being devoid of any force for the reasons hereinafter of mentioned. It is proved on record that co-accused Krishna Devi was mother-in-law of deceased and co-accused rt Purshottam Chand was father-in-law of deceased. It is proved on record that after marriage the deceased went to Ludhiana and resided at Ludhiana with co-accused Jitender for about nine months. There is no positive cogent and reliable evidence on record against co-accused Purshottam and co-accused Krishna Devi relating to cruelty as defined under Section 498- A IPC. Hence it is held that both co-accused Krishna Devi and Purshottam Chand have been correctly acquitted by learned trial Court.
18. Submission of learned Additional Advocate General appearing on behalf of State that criminal offence under Section 306 IPC is proved against the accused persons, beyond reasonable time is rejected being devoid of any force.
::: Downloaded on - 15/04/2017 18:44:33 :::HCHP 24It is well settled law that there should be direct nexus between abetment and suicide. There is no evidence on record in order .
to prove that accused persons had abetted the deceased to commit suicide. None of prosecution witnesses have stated that accused persons have abetted the deceased to commit suicide. In absence of direct nexus between the abetment and suicide it is not expedient in the ends of justice to convict the of accused persons under Section 306 IPC. It was held in case reported in AIR 2011 SC 1238 titled M.Mohan vs. State that in rt order to convict a person under section 306 IPC there has to be clear mensrea to commit offence. It was held that it requires an active act or direct act which leads the deceased to commit suicide and act must have been intended to push the deceased into such position that deceased committed suicide. Also see 1997(4) Supreme 214 titled Sangarabonia Sreenu vs. State of A.P.. Also see AIR 2011 SC 1290 titled Aruna Ramchandra Shanbaug vs. Union of India. It is held that prosecution did not prove beyond reasonable doubt that accused have committed the criminal offence under Section 306 IPC.
19. Submission of learned Advocate appearing on behalf of the co-accused Jatinder that as per testimony of DW1 co-accused Jatinder be acquitted qua offence punishable ::: Downloaded on - 15/04/2017 18:44:33 :::HCHP 25 under Section 498-A IPC is rejected being devoid of any force for the reasons hereinafter mentioned. We have carefully .
perused the testimony of DW1 Dr. Kiran Kaushal posted in B.L. Kapoor Memorial Hospital Ludhiana (Punjab). DW1 Dr. Kiran Kaushal when appeared in witness box has specifically stated in cross examination that he did not remember whether during the period of medical treatment given by him to of deceased Neelam Kumari he had observed any symptoms of depression. DW1 has specifically stated in cross examination rt that as per his record there was no symptom of depression.
DW1 has specifically stated when appeared in witness box that he did not record any symptom of depression upon the deceased in medical record. It is held that testimony of DW1 is not helpful to co-accused Jatinder.
20. Submission of learned Advocate appearing on behalf of co-accused Jatinder that as per testimony of DW2 Sanjay Kumar co-accused Jatinder be acquitted qua criminal offence punishable under Section 498-A IPC is rejected being devoid of any force for the reasons hereinafter mentioned.
DW2 Sanjay Kumar has specifically stated that accused persons belong to his caste and he has got Bartandari relations with accused persons. DW2 is not expert. It is well ::: Downloaded on - 15/04/2017 18:44:33 :::HCHP 26 settled law that mental stage of individual can be proved in judicial proceedings only by medical officer or only by medical .
expert.
21. Submission of learned Advocate appearing on behalf of co-accused Jatinder that as per testimony of DW3 Dr.Sanjay Arora co-accused Jatinder be acquitted qua offence punishable under Section 498-A IPC is rejected being devoid of of any force for the reasons hereinafter mentioned. DW3 has specifically stated that schizophrenia is not by birth. DW3 has rt also stated in positive manner that there is no recital in his record that deceased was having tendency to commit suicide.
DW3 did not state in his report or in his testimony that attack of schizophrenia remained upon the deceased continuously for 24 hours. As per medical jurisprudence attack of schizophrenia is intervals in nature. There is no positive cogent and reliable evidence on record that on dated 19/20th October 2005 deceased had sustained attack of schizophrenia. No explanation has been given by accused persons that how the deceased reached at rivulet in the stage of schizophrenia attack which was situated at a distance of about 3 K.m. from police station and which was 100 feet in depth. Court is of the opinion that a person cannot reach in ::: Downloaded on - 15/04/2017 18:44:33 :::HCHP 27 rivulet which is 100 feet in depth from her matrimonial house in schizophrenia condition. Age of deceased was 29 years and .
deceased was also pregnant when she died due to ante-
mortem head injury. It is also proved on record as per testimony of PW3 Sneh Lata that deceased was acquiring Nursing training in Mohali Chandigarh. There is no evidence on record in order to prove that deceased was patient of of schizophrenia continuously for 24 hours. On the contrary it is proved on record as per testimony of PW1, PW2 and PW3 that rt deceased had directly narrated the incident of her mental cruelty given to deceased by co-accused Jatinder when she was in sound state of mind. It is held that it is proved on record beyond reasonable doubt that deceased was not patient of schizophrenia continuously for 24 hours. There is no evidence on record in order to prove that when deceased committed suicide at that time the deceased was suffering the attack of schizophrenia.
22. Another submission of learned Advocate appearing on behalf of co-accused Jatinder that there is material improvement in testimonies of prosecution witnesses relating to offence under Section 498-A and on this ground co-
accused Jatinder be acquitted is rejected being devoid of any ::: Downloaded on - 15/04/2017 18:44:33 :::HCHP 28 force for the reasons hereinafter mentioned. We have carefully perused the entire evidence of prosecution .
witnesses. Incident took place on the intervening night of 19/20th October 2005 and testimonies of prosecution witnesses were recorded on dated 25.5.2009, 26.5.2009, 27.5.2009 and 28.5.2009. There is no material contradiction in testimonies of prosecution witnesses. It was held in case of reported in (2010)9 SCC 567 titled C. Muniappan and others vs. State of Tamil Nadu that even if there are some omissions rt contradictions and discrepancies then entire evidence would not be discarded. It was held that undue importance should not be given to omissions, contradictions and discrepancies which do not go to the root of the case. (See: AIR 1972 SC 2020 titled Sohrab and another vs. The State of Madhya Pradesh, See: AIR 1985 SC 48 titled State of U.P. vs. M.K. Anthony; See: AIR 1983 SC 753 titled Bharwada Bhoginbhai Hirjibhai vs. State of Gujarat; See:
AIR 2007 SC 2257 titled State of Rajasthan vs. Om Parkash; See:
(2009)11 SCC 588 titled Prithu alias Prithi Chand and another vs. State of Himachal Pradesh; (2009)9 SCC 626 titled State of Uttar Pradesh vs. Santosh Kumar and others; See:AIR 1988 SC 696 titled Appabhai and another vs. State of Gujarat; See: AIR 1999 SC 3544 titled Rammi alias Rameshwar vs. State of Madhya Pradesh; See:
(2000)1 SCC 247 titled State of H.P. vs. Lekh Raj and another; See:
::: Downloaded on - 15/04/2017 18:44:33 :::HCHP 29(2004) 10 SCC 94 titled Laxman Singh vs. Poonam Singh and others;
See: (2012)10 SCC 433 Kuriya and another vs. State of Rajasthan)
23. Submission of learned Advocate appearing on .
behalf of co-accused Jatinder that all prosecution witnesses are interested witnesses and on this ground co-accused Jatinder be acquitted qua criminal offence punishable under Section 498-A IPC is rejected being devoid of any force for the of reasons hereinafter mentioned. It is well settled law that cruelty to a married woman in her matrimonial house is committed within four walls of a room. It was held in case rt reported in 1997(3) Crimes 362 (P&H) titled Sita Ram and others vs. State of Haryana and another that cruelty is not physical only but mental cruelty is also cruelty as defined under Section 498-A IPC. It is well settled law that offence under Section 498-A IPC is continuing offence. It was held in case reported in 1998 Cr.L.J. 554 titled Jagdish and others vs. State of Rajasthan and another that if harassment is meted out to a married woman in her matrimonial house same would fall within the definition of mental cruelty. It was held in case reported in 1993(3) Crimes 518 SC titled State of West Bengal vs. Orilal Jaiswal and another that where evidence about physical and mental torture of deceased came from relatives same should not be discarded ::: Downloaded on - 15/04/2017 18:44:33 :::HCHP 30 simply on ground of absence of corroboration from independent witness. Also see (2015)2 SCC 690 titled Kanchanben .
Purshottambhai Bhanderi vs. State of Gujarat. See 1998 SCC (Cri) 833 titled Ram Kumar and another vs. State of Haryana.
24. Another submission of learned Advocate appearing on behalf of co-accused Jatinder that if accused is acquitted qua offence punishable under section 306 IPC then of co-accused Jatinder could not be convicted under Section 498-A IPC is rejected being devoid of any force for the reasons hereinafter mentioned. It is well settled law that criminal rt offences under Section 498-A IPC and criminal offence under Section 306 IPC are distinct criminal offences. It was held in case reported in AIR 1999 SC 2071 titled Arun Vyas and another vs. Anita Vyas that cruelty as defined and explained appended to Section 498-A IPC is continuing criminal offence on each occasion on which wife is subjected to cruelty. Section 498-A IPC was inserted in criminal law in Second Amendment Act 1983 and came into force w.e.f. 25.12.1983. Section 498-A IPC is the outcome of pressing need of society to stop all sorts of cruelty towards married women which became burning problem of the country. ( AIR 1983 SC 1002 titled Virbhan Singh and another vs. State of U.P.) In present case deceased had died ::: Downloaded on - 15/04/2017 18:44:33 :::HCHP 31 in the alarming stage when she was in pregnancy of 8/9 months. Even non-born child in the womb had also died in .
present case. Even as per section 222(2) Code of Criminal Procedure 1973, accused can be convicted for minor offence.
See AIR 2000 SC 297 titled State of H.P. vs. Tara Dutta. See 1997(4) SCC 214 Sangarabonia Sreenu vs. State of A.P. It was held in case reported in AIR 1980 SC 957 titled Bhee Ram vs. State of Haryana of that falsus in uno falsus in omnibus will not be applicable in criminal cases. Also See AIR 1971 SC 2505 titled Rai Singh vs. State rt of Haryana. It was held in case reported in AIR 1973 SC 944 titled Jose vs. State of Kerala that conviction can be given on testimony of solitary witness in criminal case if testimony of witness inspires confidence of Court.
25. In view of above stated facts appeal is partly allowed. Acquittal of co-accused Jatinder Kumar only relating to criminal offence under Section 498-A IPC is set aside and co-accused Jatinder Kumar is convicted under Section 498-A IPC. Judgment of learned trial Court is modified to this extent only. Now convicted Jatinder Kumar be heard on quantum of ::: Downloaded on - 15/04/2017 18:44:33 :::HCHP 32 sentence. Convicted Jatinder Kumar be produced before this Court on 10.8.2015.
.
(Sanjay Karol),
Judge
of
July 14,2015 (P.S. Rana)
(ms). Judge
Cr. Appeal No. 343 of 2010
rt QUANTUM OF SENTENCE
12.08.2015
Present:- Mr. Ashok Chaudhary, Additional Advocate
General with Mr.V.S. Chauhan, Additional Advocate General, for the appellant.
Mr. Anup Chitkara Advocate, for convicted person.
Convicted person is in custody of HHC Narender Kumar No. 1294 and HHC Shyam Lal No. 822 of P.L.Kaithu.
26. We have heard learned Additional Advocate General appearing on behalf of the State and learned defence counsel appearing on behalf of the convicted person upon quantum of sentence.
::: Downloaded on - 15/04/2017 18:44:33 :::HCHP 3327. Learned Additional Advocate General appearing on behalf of the State submitted before us that convicted .
namely Jatinder Kumar has committed cruelty upon the deceased in her matrimonial home when deceased was pregnant and deterrent punishment be awarded to the convicted person in order to maintain majesty of law in the society. On the contrary learned defence counsel appearing of on behalf of convicted person submitted before us that convicted person is first offender and he has family and old rt parents to support and lenient view be adopted.
28. We have considered the submissions of learned Additional Advocate General appearing for the State and learned defence counsel appearing on behalf of convicted person carefully upon quantum of sentence.
29. In present case cruelty was committed upon the deceased when deceased was in pregnancy stage. It is well settled law that during pregnancy stage woman requires special care and special protection. It was held in case reported in 2015(3) SCC 441 titled State of Punjab vs. Bawa Singh that sentence should commensurate with gravity of offence.
Also see AIR 2015 SC 398 titled State of M.P. vs. Surendra Singh. In order to curb out the tendency of cruelty upon married women ::: Downloaded on - 15/04/2017 18:44:33 :::HCHP 34 in pregnancy stage and in view of the fact that deceased had died in prime age of 29 years due to cruelty committed upon .
the deceased in her matrimonial house and in order to maintain majesty of law in society we sentence the convicted person as follow:-
Sr. Nature of Offence Sentence imposed of No.
1. Offence under Section 498-A Convicted person is IPC sentenced to undergo simple imprisonment for nine months and fine to rt the tune of `20,000/-
(Rupees twenty
thousand only). In
default of payment of
fine convicted person
shall further undergo
simple imprisonment for
two months.
30. Period of custody during investigation, inquiry and trial will be set off. Certified copy of this judgment and sentence be supplied to convicted person forthwith free of cost. Case property will be confiscated to State of H.P. after the expiry of period of filing further legal proceedings before the competent Court of law. File of learned trial Court along with certified copy of judgment and sentence will be sent back forthwith. Criminal appeal No. 343 of 2010 stands disposed of.::: Downloaded on - 15/04/2017 18:44:33 :::HCHP 35
All pending miscellaneous application(s) if any also stands disposed of.
.
(Sanjay Karol),
Judge
August 12, 2015 (P.S. Rana)
(ms). Judge
of
rt
::: Downloaded on - 15/04/2017 18:44:33 :::HCHP