Himachal Pradesh High Court
State Of H.P vs Pardeep Kumar And Another on 29 August, 2016
Bench: Sanjay Karol, Vivek Singh Thakur
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Criminal Appeal No.172 of 2011 Reserved on : 3.8.2016 .
Date of Decision : August 29, 2016 State of H.P. ...Appellant.
Versus Pardeep Kumar and another ...Respondents. Coram:
of The Hon'ble Mr. Justice Sanjay Karol, Judge. The Hon'ble Mr. Justice Vivek Singh Thakur, Judge.Whether approved for reporting? No. 1
For the Appellant rt : Mr. V.S. Chauhan, Additional Advocate General; Mr. Vikram Thakur & Mr. Puneet Rajta, Deputy Advocates General.
For the Respondent : Mr. J.R. Poswal, Advocate.
Sanjay Karol, Judge State has appealed against the judgment dated 20.11.2010, passed by learned Additional Sessions Judge, Ghumarwin, District Bilaspur, Himachal Pradesh, in Sessions Trial No.156/7 of 2009, titled as State of Himachal Pradesh v. Pardeep Kumar & another, challenging the acquittal of respondents Pardeep Kumar and Biasan Devi (hereinafter referred to as the accused).
2. In short, it is the case of prosecution that deceased Kaushalya Devi was married to accused Whether reporters of the local papers may be allowed to see the judgment? ::: Downloaded on - 15/04/2017 21:05:47 :::HCHP
...2...
Pardeep Kumar on 26.4.2007. Since the inception of marriage, both Pardeep Kumar and his mother accused Biasan Devi, repeatedly subjected Kaushalya Devi to .
cruelty, mental and physical, and also made several demands of dowry. Last such demand was made 15-20 days prior to 29.4.2009, the day on which Kaushalya Devi committed suicide. Despite repeated counselling and of assurances, accused did not mend their conduct which forced the deceased to commit suicide by jumping into rt the water body. Dead body was noticed by the villagers and just when the body was being taken for cremation, Mast Ram (PW-11), Pradhan of Gram Panchayat Jejwin, reported the matter to the police, which led to recording of rapat (Ex.PW-10/A). Investigating Officer (PW-15) reached the spot and got postmortem of the dead body conducted from Dr. Yuvraj Suri (PW-7). Dead body, after postmortem, was handed over to the accused, who carried out the cremation same day. Since parents of the deceased were in a state of shock, after two days, i.e. on 1.5.2009, formal complaint came to be lodged with the police and on the basis of statement of Sunder Singh (PW-4), father of the deceased, FIR No.118, dated ::: Downloaded on - 15/04/2017 21:05:47 :::HCHP ...3...
1.5.2009 (Ex. PW-4/A), for commission of offences punishable under the provisions of Sections 498A/306/304B/34 of the Indian Penal Code, was .
registered at Police Station, Sadar (Bilaspur). Investigation revealed that the accused constantly subjected the deceased to cruelty, as a result of which she took away her life. As such, challan was presented in of the Court for trial.
3. Accused were charged for having committed rt offences punishable under the provisions of Sections 498- A and 306, and alternatively under Section 304-B of the Indian Penal Code, to which they did not plead guilty and claimed trial.
4. In order to establish its case, prosecution examined as many as 15 witnesses and statements of the accused, under the provisions of Section 313 of the Code of Criminal Procedure (hereinafter referred to as the Code), recorded, in which they took defence of innocence and false implication. Also, they got recorded their statement (Ex.DX) under the provisions of Section 233(2) of the Code.
::: Downloaded on - 15/04/2017 21:05:47 :::HCHP
...4...
5. Based on the testimonies of witnesses and the material on record, trial Court acquitted both the accused of the charged offences. Hence, the present .
appeal by the State.
6. We have heard Mr. V.S. Chauhan, learned Additional Advocate General, Mr. Vikram Thakur & Mr. Puneet Rajta, learned Deputy Advocates General, on of behalf of the State as also Mr. J.R. Poswal, Advocate, on behalf of the accused. We have also minutely examined rt the testimonies of the witnesses and other documentary evidence so placed on record by the prosecution. Having done so, we are of the considered view that no case for interference is made out at all. We find that the judgment rendered by the trial Court is based on complete, correct and proper appreciation of evidence (documentary and ocular) so placed on record. There is neither any illegality/infirmity nor any perversity with the same, resulting into miscarriage of justice.
7. It is a settled principle of law that acquittal leads to presumption of innocence in favour of an accused. To dislodge the same, onus heavily lies upon the prosecution. Having considered the material on ::: Downloaded on - 15/04/2017 21:05:47 :::HCHP ...5...
record, we are of the considered view that prosecution has failed to establish essential ingredients so required to constitute the charged offence.
.
8. In Prandas v. The State, AIR 1954 SC 36, Constitution Bench of the apex Court, has held as under:
"(6) It must be observed at the very outset that we cannot support the view which has been expressed in several cases that the High Court has no power under S. 417, Criminal of P.c., to reverse a judgment of acquittal, unless the judgment is perverse or the subordinate Court has in some way or other misdirected rtitself so as to produce a miscarriage of justice.
In our opinion, the true position in regard to the jurisdiction of the High Court under S. 417, Criminal P.c. in an appeal from an order of acquittal has been stated in - 'Sheo Swarup v. Emperor', AIR 1934 PC 227 (2) at pp.229, 230 (A), in these words:
"Sections 417, 418 and 423 of the Code give to the High Court full power to review at large the evidence upon which the order of acquittal was founded, and to reach the conclusion that upon that evidence the order of acquittal should be reversed. No limitation should be placed upon that power, unless it be found expressly stated in the Code. But in exercising the power conferred by the Code and before reaching its conclusions upon fact, the High Court should and will always give proper weight and consideration to such matters as (1) the views of the trial Judge as to the credibility of the witnesses, (2) the presumption of innocence in favour of the accused, a presumption certainly not weakened by ::: Downloaded on - 15/04/2017 21:05:47 :::HCHP ...6...
the fact that he has been acquitted at his trial, (3) the right of the accused to the benefit of any doubt, and (4) the slowness of an appellate Court in disturbing a finding of fact arrived at by .
a Judge who had the advantage of seeing the witnesses. To state this, however, is only to say that the High Court in its conduct of the appeal should and will act in accordance with rules and principles well known and recognized in the administration of justice." "
9. It is a settled position of law that there should of be reasonable nexus between cruelty and suicide. It has to be substantiated, established and proved on record.
rt Cruelty by itself would not amount to having committed an offence punishable under Section 498-A IPC. A reasonable nexus has to be established between cruelty and the suicide in order to make good the offence of cruelty under the penal laws. Cruelty has to be of such a gravity as is likely to drive a woman to commit suicide. Suicide alone would not establish that it was occasioned on account of cruelty which was of sufficient gravity so as to lead a reasonable person placed in similar circumstances to commit suicide. Mere assumption or demand of dowry by itself in given circumstances may not amount to cruelty. The harassment has to be with a definite object i.e. to meet any unlawful demand. Every ::: Downloaded on - 15/04/2017 21:05:47 :::HCHP ...7...
act of cruelty is not punishable. There must be evidence to show that soon before the death the victim was subjected to cruelty or harassment. Prosecution has to .
rule out the possibility of natural or accidental death so as to prove that the death had occurred otherwise than in normal circumstances. There must be existence of a proximate and live link between the effect of cruelty of based on dowry demand and the concerned death. If the incident of cruelty is remote in time and has become rt stale enough not to disturb the mental equilibrium of the woman concerned, it would be of no consequence.
10. It is not a case of murder. It is also not the case of the prosecution that the deceased consumed poison. As per the testimony of the Investigating Officer, at the spot from where dead body was recovered, there is a steep cliff. It has come in the testimony of the Investigating Officer that deceased had gone to cut grass. A basket and cut grass was also found closeby.
11. From the report of the Forensic Science Laboratory (Ex.PW-7/D), it is evident that no poisonous substance was found in the body of the deceased. When we peruse the testimony of Dr. Yuvraj Suri who ::: Downloaded on - 15/04/2017 21:05:47 :::HCHP ...8...
conducted the postmortem, as also the postmortem report (Ex.PW-7/F), we find that no signs of any injury whatsoever were found on the body of the deceased, who .
died due to asphyxia as a result of drowning.
12. It is not the case of the prosecution that the accused threw the deceased from the cliff. Also no role is ascribed to the accused in the act of drowning of the of deceased. Their presence, before the crime, is not recorded on the spot.
13. rt Investigating Officer admits his investigation to have revealed, the deceased having left her house at about 6 a.m., for cutting grass. Since she did not return, accused Biasan Devi went out to search for her. Only when she found the dead body lying in the check dam, she raised an alarm, as a result of which one Bachittar Singh reached the spot and took out the dead body. Now, Bachittar Singh has not been examined in Court. Why so? remains unexplained. Perhaps, he would have thrown some light about the events which transpired on the spot.
14. Be that as it may, the fact of the matter is that the police learnt about the incident after Pradhan ::: Downloaded on - 15/04/2017 21:05:47 :::HCHP ...9...
Mast Ram (PW-11) furnished such information, on telephone. Entry (Ex.PW-10/A) was made in the Police Station and only whereafter police reached the spot.
.
15. We find from reports (Ex.PW-10/A & 10/B) that the Pradhan had expressed his doubt, suspecting some foul play in the death of the deceased, yet police did not find it to be true or correct, for after the of postmortem, dead body came was handed over to the accused, who performed the last rites in the presence of rt the relatives of deceased, including her parents. investigation did not reveal complicity of the accused in Initial the crime.
16. Noticeably, none lodged any report against the accused for more than two days. It is not that parents or relatives of the deceased were illiterate. It is also not that the incident took place in the remotest corner of the State, hence none from the family had access to the administrative or judicial machinery. It is also not the case of prosecution that police was siding with the accused and initially were trying to cover up the incident. It is also not the case of prosecution that the accused were influential and/or in any manner trying to ::: Downloaded on - 15/04/2017 21:05:47 :::HCHP ...10...
cover up the incident; influence the police or overawe, intimidate or influence the complainant party. In fact they were absolutely free to report the matter to the .
police or the authorities, more so in view of the fact that Pradhan of their village had already reported the matter about the death of the deceased to the police. Significantly, Pradhan did not disclose that the deceased of had been subjected to cruelty, harassment or dowry demand at any point in time.
17. rt We find that the matter formally came to be reported to the police on 1.5.2009. The members of the complainant party have tried to explain the delay of two days by stating that they were in a shock and busy in performance of the last rites. This explanation, to our mind, is not true, plausible or acceptable and this we say so for the reason that (a) the parents of the deceased had already reached the place where the dead body was recovered, (b) there were 50-100 persons, who had collected on the spot with whom no grievance was made,
(c) the complainant party after the cremation had returned to their house, as is so admitted by the parents, and as such were not busy in the performance of last ::: Downloaded on - 15/04/2017 21:05:47 :::HCHP ...11...
rites, which even according to them and the Investigating Officer was so done only by the accused. Delay seriously rendered the prosecution story to be doubtful.
.
18. To establish the factum of maltreatment, cruelty, harassment and dowry demand, our specific attention is invited to the testimonies of Kumari Prinkya (PW-3), Sunder Singh (PW-4) and Bimla Devi (PW-5).
of Conjoint reading of the same only establishes four facts:
(a) since the inception of marriage, the accused had been rt subjecting the deceased to maltreatment, (b) of and on, demand of money was raised, which was met by the parents, (c) in March 2009, deceased came to stay with her parents. When her husband (accused) came to take her back, he was counseled. At that time, he assured of improving his conduct, and (d) 15-20 days prior to the incident, deceased came to her parents, stating that the accused had raised a demand of `10,000/- and a gold chain. Such demand was partly met by making payment of `5,000/-, by withdrawing the same from a Bank.
19. We find that except for the last demand of dowry, all other allegations are vague, unspecific as to time, place and manner.
::: Downloaded on - 15/04/2017 21:05:47 :::HCHP
...12...
20. No doubt, it stands established through the testimony of Keshva Nand (PW-6) that a sum of `5,000/- was withdrawn from the Bank Account of Bimla Devi, but .
then, in whose presence such dowry demand was met, remains undisclosed. Also, it is not the case of this witness that a sum of `5,000/- allegedly handed over to the deceased, was in turn given to the accused, who of refused to accept the same for want of fulfillment of the remaining demand. It is not the case of this witness that rt the accused compelled the deceased to meet the demands in totality.
21. Crucially, none of these instances came to be reported by the witness to anyone at the time when they learnt about the death of the deceased or thereafter when the matter came to be investigated by the police or when the postmortem of the dead body was conducted in the Government hospital or performance of last rites. As such, silence of two days in the present case remains unexplained, apart from the fact that we find the allegations of maltreatment, harassment, cruelty and dowry demand not to have been established, as is ::: Downloaded on - 15/04/2017 21:05:47 :::HCHP ...13...
required to be established and proven, in accordance with law.
22. This we say so also for the reason, as is so .
admitted by Sunder Singh, that marriage came to be solemnized through the mediation of one Arjun Singh, whose house is just at a distance of 2 kms from the matrimonial house of the deceased. Significantly, of parents had verified the antecedents of the family of the accused and nothing adverse was found against them. suitable, rt Finding the match to be compatible and the families such marriage came to be solemnized. Allegedly, for more than four years, deceased was subjected to maltreatment, yet none of the incidents came to be reported to the mediator. Also no grievance was ever made against the conduct of the accused.
23. As is so admitted by Sunder Singh, the matter never came to be reported to the Panchayat. Why so? remains unexplained. In fact, his testimony belies the version of Mast Ram, according to whom oral complaint about maltreatment and dowry demand was made by Bimla Devi, which version we do not find to be inspiring in confidence. In fact, he goes on to state that he did not ::: Downloaded on - 15/04/2017 21:05:47 :::HCHP ...14...
report the matter, as police did not ask him to do so. It is not his case that he was under any fear or shock. In fact, he goes on to state that "it is correct that on that day .
after coming back to police station the police had recorded report that our daughter had a fall due to her slipping".
24. Not only that, from the testimony of this of witness, it is evident that Bidhi Chand (PW-2), who is a close relative, also used to reside near the matrimonial rt house of the deceased. He also did not inform the police about the incident. Why so? remains unexplained by him. He was not involved or busy in the performance of any one of the last rites of the deceased.
25. Cross-examination part of the testimony of Bimla Devi is also to similar effect.
26. When we peruse the testimony of Kumari Prinkya, we find the factum of demand of `10,000/- and gold chain to be absolutely missing. It is a fact that she was close to the deceased or frequently visited and stayed with her. She only states that the accused used to maltreat and harass the deceased. But then she is absolutely silent about the particulars and details thereof. ::: Downloaded on - 15/04/2017 21:05:47 :::HCHP
...15...
In fact, she renders the prosecution case to be doubtful, by stating that "It is correct that whenever I visited the house of my sister her mother-in-law treated me .
properly. I cannot say when the accused persons had demanded half of the expenses of the food from my sister" and also that "It is correct that my sister and her mother-in-law used to live peacefully and worked of together". Her version of demand of money, as she admits, is false. But what totally knocks down the rt prosecution case is her following admission: "It is correct that my statement was dictated to the police by my parents. My parents did not tell the police about demanding of money by the accused person when my statement was dictated by them to the police".
27. She tries to introduce yet another ground of harassment and that being insistence on the part of the mother-in-law of sharing the household expense, which in fact is not the stated case of the father.
28. When we peruse the testimony of Gian Singh (PW-1), uncle and Ajit Kumar (PW-8) brother to the deceased, we do not find them to have, in any manner, established the prosecution case. ::: Downloaded on - 15/04/2017 21:05:47 :::HCHP
...16...
29. Hence, it cannot be said that prosecution has been able to prove its case, by leading clear, cogent, convincing and reliable piece of evidence so as to prove .
that any one of the accused had subjected the deceased to cruelty by maltreating her, forcing her to commit suicide, or that they subjected her to cruelty in connection with demand of dowry, which prompted her to of take away her life. Statutory presumption of dowry death cannot be invoked in the given facts and circumstances.
30. rt It stands clarified that our opinion is not based on the statement made by the accused, but only a complete appreciation of testimonies of prosecution witnesses.
31. From the material placed on record, prosecution has failed to establish that the accused are guilty of having committed the offence, they stand charged with. The circumstances cannot be said to have been proved by unbroken chain of unimpeachable testimony of the prosecution witnesses. The guilt of the accused does not stand proved beyond reasonable doubt to the hilt. The chain of events does not stand ::: Downloaded on - 15/04/2017 21:05:47 :::HCHP ...17...
conclusively established, leading only to one conclusion, i.e. guilt of the accused.
32. For all the aforesaid reasons, we find no .
reason to interfere with the judgment passed by the trial Court. The Court has fully appreciated the evidence so placed on record by the parties.
33. The accused have had the advantage of of having been acquitted by the Court below. Keeping in view the ratio of law laid down by the Apex Court in rt Mohammed Ankoos and others versus Public Prosecutor, High Court of Andhra Pradesh, Hyderabad (2010) 1 SCC 94, it cannot be said that the Court below has not correctly appreciated the evidence on record or that acquittal of the accused has resulted into travesty of justice. No ground for interference is called for. The present appeal is dismissed. Bail bonds, if any, furnished by the accused are discharged.
Appeal stands disposed of, so also pending application(s), if any.
( Sanjay Karol ), Judge.
( Vivek Singh Thakur ),
August 29, 2016(sd) Judge.
::: Downloaded on - 15/04/2017 21:05:47 :::HCHP