Himachal Pradesh High Court
State Of Himachal Pradesh vs Rajender Singh & Another on 12 August, 2016
Bench: Dharam Chand Chaudhary, Chander Bhusan Barowalia
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.
Cr. Appeal No. 800 of 2008.
.
Decided on: August 12th August, 2016.
State of Himachal Pradesh. ......Appellant.
of
Versus
Rajender Singh & another ......Respondents.
rt
Coram
The Hon'ble Mr. Justice Dharam Chand Chaudhary, Judge.
The Hon'ble Mr. Justice Chander Bhusan Barowalia, Judge.
Whether approved for reporting?1No.
For the appellant : Mr. D.S. Nainta and Mr. Virender
Verma, Additional AGs.
For the respondents : Mr. Deepak Kaushal, Advocate.
Dharam Chand Chaudhary, J. (Oral)
The State of Himachal Pradesh has come up in appeal to this Court against the judgment dated 25.9.2008 passed by learned Additional Sessions Judge, Sirmaur district At Nahan in Sessions trial No. 11-N/7 of 2005 1 Whether the reporters of the local papers may be allowed to see the Judgment? yes.
::: Downloaded on - 15/04/2017 21:01:25 :::HCHP 2whereby the respondents (hereinafter referred to as the 'accused') have been acquitted of the charge under .
Sections 498-A, 306 read with Section 34 of the Indian Penal Code framed against each of them.
2. Allegations against both accused in a nutshell of are that in furtherance of their common intention they had been subjecting Mamta, the deceased with cruelty for about two years of her death and as a result thereof she rt committed suicide on 25.8.2004 around 8:00 P.M. it is they who abetted the commission of suicide by her and as such allegedly committed an offence punishable under Section 498-A and 306 read with Section 34 of the Indian Penal Code.
3. Mamta a young lady aged 27 years has committed suicide on 25.8.2004 in the matrimonial home at village Sataun Tehsil Paonta Sahib District Sirmour. She was daughter of Shri Ratti Ram PW1 and sister of PW2 Sunil Kumar. Accused No. 1 had solemnized marriage with her about ten years ago. Later on, he contracted second marriage with accused No. 2 Santosh Bala. It is after that both accused started treating the deceased with cruelty.
She was being tortured and maltreated in the matrimonial ::: Downloaded on - 15/04/2017 21:01:25 :::HCHP 3 home. After contracting second marriage by her husband accused No. 1 with accused No. 2 they both started living .
separately from the deceased. The deceased was shifted to old house and was residing there. Accused started compelling her to obtain a separate ration card for herself.
of Accused Rajender Singh even stopped to maintain her and as a result thereof she became dependent upon her father and brother PWs 1 and 2, respectively.
rt She complained such act and conduct of accused No. 1 to the then Ward Member of gram Panchayat, Dugana, Inder Singh PW3. It is on account of such deeds and conduct of the accused she committed suicide on 25.8.2004 by tying her neck with dupatta which she had tied with hook of the fan in the roof of room.
4. Poonam PW6 the niece of the deceased when knocked the door it was found locked from inside and there was no response. She entered into the room through a window and found the deceased hanging with hook of fan in the room. PW6 has opened the door and raised alarm.
The other family members got attracted to the place of occurrence. The loop of the noose was cut with the help of darat and thereby bringing down the dead body. PW5 Smt. ::: Downloaded on - 15/04/2017 21:01:25 :::HCHP 4 Asha Chauhan, the then president of Gram Panchayat, Sataun also arrived at the spot. She advised to remove the .
deceased immediately to the hospital.
5. The information was also given to the police of police post, Rajban which was reduced into writing in daily of diary vide rapat Ext.PW11/A. The information so received was sent to Police Station, Paonta Sahib which was reduced into writing in daily diary vide rapat Ext.PW12/A in the rt police station. Inspector/SHO Khajana Ram PW16 rushed to the spot. The statement Ext.PW1/A of Ratti Ram PW1 was recorded by PW16. The statement so recorded was sent to the police station for registration of FIR. Consequently, FIR Ext.PW15/A came to be recorded in police Station, Paonta Sahib by PW15 Inspector Sucha Nand the then Additional SHO. The dead body was got photographed vide photographs Ext.PW9/A-1 to Ext.PW9/A-6 from a photographer namely Jai Chand PW9. The spot map Ext.PW16/C was prepared. PW16 has also prepared the inquest reports Ext.PW16/A and Ext.PW16/B. It is thereafter the dead body was sent to hospital for getting the post mortem conducted. The I.O. PW16 has made an application Ext.PW16/D to the medical officer requesting thereby to ::: Downloaded on - 15/04/2017 21:01:25 :::HCHP 5 conduct the post mortem of the dead body. The post mortem was conducted by Dr. Sanjeev Sehgal PW13. He .
has issued the post mortem report Ext.PW13/A. During the investigation of the case dupatta Ex.P2 and Ext.P3 used by the deceased for hanging herself were taken into of possession vide memo Ext.PW4/A in the presence of Kundan Singh PW4 and Asha Chauhan PW5. The I.O. has also taken into possession the darat used for cutting the noose of rt dupatta into possession vide memo Ext.PW4/B in the presence of the same witnesses. The marriage certificate Ext.PW7/A along with copy of pariwar register Ext.PW7/C and copy of order of Executive Magistrate Ext.PW7/B were also obtained from PW7 Ramesh Chand. The Aks tatima Ext.PW8/A and copy of jamabandi Ext.PW8/B of the place of occurrence were also obtained from Panch Ram PW8. As per the report of Chemical Examiner Ext.PX blood was not found on dupatta and darat. Similarly, as per report Ext.PY no alcohol or poison was found to be there in the visra of the deceased.
6. On the completion of the investigation, challan against both the accused was filed in the Court. Learned trial Judge on taking into consideration the challan as well ::: Downloaded on - 15/04/2017 21:01:25 :::HCHP 6 as the documents annexed therewith has prima facie found the involvement of both the accused in the commission of .
the offence punishable under Section 489-A, 306 read with Section 34 of the Indian Penal Code. Challan was, therefore, framed against both of them accordingly.
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7. Prosecution in order to sustain the charge against the accused has examined 17 witnesses in all. Out of them, it is only PW1 Ratti Ram the father of deceased, rt her brother Sunil Kumar PW2, Ward Member Inder Singh PW3, Pradhan Gram Panchayat Smt. Asha Chauhan PW5 and Kumari Poonam PW6 are the only material witnesses and as regard the remaining prosecution witnesses, they remained associated during the investigation of the case in own capacity or other and as such their testimony can only be relied upon as link evidence.
8. Learned trial Judge on appreciation of the evidence has arrived at a conclusion that the prosecution could not prove its case against the accused beyond all reasonable doubt. The accused as such have been given the benefit of doubt and resultantly acquitted of the charge framed against each of them.
::: Downloaded on - 15/04/2017 21:01:25 :::HCHP 79. The judgment under challenge has been assailed on the grounds inter alia that cogent and reliable evidence .
as has come on record by way of testimony of the prosecution witnesses has erroneously been brushed aside and to the contrary the findings recorded are erroneous and of based upon surmises and conjectures.
10. Shri D.S. Nainta, learned Additional Advocate General has vehemently argued that the overwhelming rt evidence as has come on record by way of the testimony of the prosecution witnesses leads to the only conclusion that the deceased was being tortured and maltreated by her in-
laws, the accused at the pretext of dowry and as she has died within five years of her marriage with accused Rajender Singh in the matrimonial home, therefore, it is the accused persons, who had been torturing and maltreating the deceased, hence abetted the commission of suicide by her.
11. On the other hand Shri Deepak Kaushal, Advocate, learned counsel has urged that no instance of cruelty has come on record by way of evidence produced by the prosecution. The evidence rather reveals that the deceased was being looked-after and treated nicely by the ::: Downloaded on - 15/04/2017 21:01:25 :::HCHP 8 accused in the matrimonial home, therefore, according to learned counsel, learned trial Court has not committed any .
illegality or irregularity while acquitting the accused of the charge framed against each of them.
12. As per the admitted case the deceased had of committed suicide on 25.8.2004 in the matrimonial home at village Sataun Tehsil Paonta Sahib, District Sirmour.
However, it is the accused alone who have abetted the rt commission of suicide by her is a question to be adjudicated upon on reappraisal of the evidence available on record.
13. Before that we deem it appropriate to discuss as to what constitutes the commission of an offence punishable under Sections 498-A and 306 of the Indian Penal Code. A bare reading of Section 498-A reveals that sine qua non to establish the said offence is subjecting the wife with cruelty by her husband or his relative with a view to coerce her or any person related to her to meet any unlawful demand for any property or valuable security or willful conduct of the husband of such woman or a relative, of such a nature as is likely to drive her to commit suicide or to cause grave injury or danger to life, limb or health.
::: Downloaded on - 15/04/2017 21:01:25 :::HCHP 914. The Apex Court in Manju Ram Kalita versus State of Assam, (2009) 13 Supreme Court Cases 330 has held as .
under:
"21. "Cruelty" for the purpose of Section 498-A IPC is to be established in the context of Section 498-A IPC as it of may be different from other statutory provisions. It is to be determined/ rtinferred by considering the conduct of the man, weighing the gravity or seriousness of his acts and to find out as to whether it is likely to drive the woman to commit suicide, etc. It is to be established that the woman has been subjected to cruelty continuously/persistently or at least in close proximity of time of lodging the complaint. Petty quarrels cannot be termed as "cruelty" to attract the provisions of Section 498-A IPC. Causing mental torture to the extent that it becomes unbearable may be termed as cruelty."
15. So far as the commission of offence punishable under Section 306 of the Indian Penal Code is concerned, the prosecution is required to prove beyond all reasonable ::: Downloaded on - 15/04/2017 21:01:25 :::HCHP 10 doubt that some person has committed suicide as a result of abetment by the accused.
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16. In the case in hand, the deceased had committed suicide on 25.8.2004 in the matrimonial home. One of the ingredients of the commission of offence under Section 498- of A IPC, therefore, stands proved. The prosecution, however, is further required to prove that it is the accused alone who had abetted the commission of suicide by the deceased.
rt
17. Abetment has been defined under Section 107 of the Indian Penal Code. Its simple meaning is that a person abets the doing of a thing who firstly instigates any person to do a thing, or secondly, engages with one or more other person or persons in any conspiracy for doing of that thing.
If an act or illegal omission takes place in pursuance of that conspiracy, and in order to doing of that thing, or intentionally aids, by any act or illegal omission, the doing of that thing can be said to have abetted the doing of that thing.
18. Now if the prosecution case is examined in the light of the legal position as discussed supra it would not be improper to conclude that no case under Section 498-A, 306 read with Section 34 of the Indian Penal Code is made ::: Downloaded on - 15/04/2017 21:01:25 :::HCHP 11 out against either of the accused for the reason that the allegation of cruelty as has come in prosecution evidence .
are neither of serious in nature nor can be said to have derived the deceased to commit suicide. Her father while in the witness box as PW1 has only stated that the accused of Rajender Kumar started treating his daughter with cruelty after having contracted second marriage with his co-
accused Santosh. Her husband started living with his co-
rt accused Santosh Bala whereas the deceased was shifted to old house. She was not being provided food and maintenance by accused Rajender Singh. It is he who used to maintain her and also provide food and other necessities of life through his son Sunil Kumar. Accused Rajender Singh was compelling the deceased to get her ration card separated. As and when she used to come to him in his house had been complaining the mis-behaviour of her husband-accused No. 1. During her last visit to his house accused Rajender was also with her. If coming to the testimony of PW2 while corroborating the statement of his father PW1 he has also stated that accused Rajender started treating the deceased with cruelty after contracting second marriage. He was pressurising her to prepare ::: Downloaded on - 15/04/2017 21:01:25 :::HCHP 12 separate ration card for her and her children. She had been complaining against the accused that he was not providing .
her even bare necessities of life. She was living separately in a room and it is he who used to provide her ration etc. Accused Rajender had been torturing the deceased with a of view to compel her to obtain separate ration card for which the deceased was neither agreeing nor willing to do so.
19. Now if coming to their cross examination it has rt come that the instances of cruelty were not reported to any one by them including gram panahayat. They expressed ignorance that accused Rajender wanted to admit his Children in Newly opened Him Public School at Sataun and asked the deceased to take the children to the school in the morning and to brought them back to home after the school time is over and that she refused to do so. It is however admitted that accused Rajender had gone to Smt. Asha Chauhan the President of Gram Panchayat and he brought her to his home so that she could talk to Mamta, the deceased. It is however, denied that the Pradhan was called by accused Rajender when the deceased refused to accompany the children to the school. According to PW1 the dispute between them arose when the accused started ::: Downloaded on - 15/04/2017 21:01:25 :::HCHP 13 compelling the deceased to have separate ration card for her. To the similar effect is the testimony of PW2 in his .
cross examination. Additionally he has admitted that his sister and children used to go to accused Santosh and the said accused had also been going to the deceased in the old of house where she was residing.
20. Now if coming to the testimony of Inder Singh PW3 the Ward Member the deceased felt disturbed when rt her husband accused Rajender has solemnized second marriage. As per his further version before her death she came to him and apprised about the conduct of accused Rajender. The joint reading of the statements of PWs 1, 2 and 3 only demonstrate that accused Rajender started maltreating the deceased after he contracted second marriage with his co-accuse Santosh. The only instance of cruelty as surfaced is was that the said accused started compelling the deceased to have a separate ration card for herself and the children. She felt disturbed after her husband contracted second marriage was never the prosecution case. None of them have said that the deceased was being treated with cruelty by the accused at the pretext of downy or demand for any valuable article or ::: Downloaded on - 15/04/2017 21:01:25 :::HCHP 14 property. The allegations of cruelty as such are general in nature and even if believed to be true the bear and tears of .
normal married life. Accused Rajender Singh was with her when she lastly visited the place of her parents. Accused Santosh was in talking terms with deceased and her of children. Therefore, it cannot be said that the degree of cruelty if any at the hands of accused was of such a nature that the deceased could not make out any difference rt between the life and pangs of death. The present is a case where the deceased had died after ten years of her marriage with accused Rajender. Therefore, the presumption under Section 113(A) of Indian Evidence Act cannot also be drawn in this case.
21. PW5 Smt. Asha Chauhan, the Pradhan of the Gram Panchayat substantiates the plea of the accused they raised in defence that there were certain differences amongst accused Rajender and the deceased on the issue of getting admission to the children in new Him Public School. On his request though she went there but by that time Mamta has already died and she noticed her dead body lying in the verandah of the house of the accused. In her cross-examination she has stated that accused Rajender ::: Downloaded on - 15/04/2017 21:01:25 :::HCHP 15 told her that he wanted to get his daughters admitted in Him Public School at Sataun, however, his wife is not co-
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operating with him to leave them in the school. The dispute, therefore, as per such evidence available on record was on the issue of admission of the daughters born to the of deceased out of the wedlock in New Him Public School as she was not prepare to leave them in the school or brought back after school hours. The plea raised by the accused in rt their defence, therefore, seems to be nearer to the factual position. PW6 Kumari Poonam has only noticed the body of Mamta hanging with hook of fan in the room.
22. As already said hereinabove, the remaining prosecution witnesses are formal because in the presence of Kundan Singh PW4 dupatta of Mamta was taken into possession vide recovery memo Ext.PW4/A. PW7 Ramesh Chand has issued the marriage certificate Ext.PW7/A qua the marriage of both the accused whereas PW8 Panch Ram is Patwari, Patwar Circle, Shivpur who has prepared the tatima Ext.PW8/A of the place of occurrence and also issued the copy of jamabandi Ext.PW8/B. PW9 Jai Chand is a photographer and he has photographed the dead body vide photo graphs Ext.PW9/A-1 to Ext.PW9/A-6. He has also ::: Downloaded on - 15/04/2017 21:01:25 :::HCHP 16 proved the negatives thereof Ext.PW9/A-7 to Ext.PW9/A-12.
PW13 is Dr. Sanjeev Sehgal. He has conducted the post .
mortem of the dead body and proved post mortem report Ext.PW13/A. PW10 HC Mehandi Hasan, PW11 HHC Sunder Singh, PW14 Inspector Layak Ram, PW15 Inspector of Sucha Nand, PW16 Inspector Khajana Ram and PW17 Inspector Narveer Singh are the police officials who either have conducted the investigation of the case or remained rt associated during the course of investigation. The evidence as has come on record by way of the testimony of these witnesses could have been used as link evidence had the prosecution been otherwise able to prove its case against the accused beyond all reasonable doubt.
23. In view of the above as well as examining the evidence available on record from any angle, the only irresistible conclusion would be that the prosecution has failed to bring the guilt home to the accused beyond all reasonable doubt. They have, therefore, been rightly acquitted of the charge framed against each of them by learned trial Judge. The impugned judgment as such calls for no interference by this Court and the same as such is affirmed.
::: Downloaded on - 15/04/2017 21:01:25 :::HCHP 1724. In view of the above, this appeal fails and the same is accordingly dismissed. Personal bonds furnished by .
both the accused shall stand cancelled and the sureties discharged.
of (Dharam Chand Chaudhary), Judge.
rt (Chander Bhusan Barowalia),
Judge.
August 12, 2016,
(vs)
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