Himachal Pradesh High Court
State Of Himachal Pradesh vs Subhash Chand And Others on 23 September, 2016
Bench: Dharam Chand Chaudhary, Chander Bhusan Barowalia
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.
.
Cr. Appeal No. 221 of 2010 with
Cr. Appeal No. 37 of 2010
Decided on: 23rd September, 2016
Cr. Appeal No. 221 of 2010
State of Himachal Pradesh .......Appellant
of
Versus
Subhash Chand and others ...Respondents.
rt Cr. Appeal No. 37 of 2010
Balvinder Singh .......Appellant
Versus
Subhash Chand and others ...Respondents.
Coram
The Hon'ble Mr. Justice Dharam Chand Chaudhary, Judge.
The Hon'ble Mr. Justice Chander Bhusan Barowalia, Judge.
Whether approved for reporting?1Yes.
For the appellant: Mr. D.S. Nainta and Mr. Virender
Verma, Addl. A.G for the appellant in
Cr. Appeal No. 221 of 2010 and for
respondent No. 5 in Cr. Appeal No.
37 of 2010.
Mr. H.S. Rana, Advocate for the
appellant in Cr. Appeal No. 37 of
2010.
For the respondents: Mr. Ramesh Sharma, Advocate for
the respondents in Cr. Appeal
No. 221 of 2010 and for respondents
1
Whether the reporters of Local Papers may be allowed to see the judgment? Yes.
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2
No. 1 to 4 in Cr. Appeal No. 37 of
2010.
.
Dharam Chand Chaudhary, Judge (Oral)
This judgment shall dispose of both appeals arising out of the judgment dated 30.10.2009 passed by learned Additional Sessions Judge, Una in Sessions Case of No. 6/2009, whereby all the accused have been acquitted of the charge under Sections 498-A, 304-B, 306 rt read with Section 34 of the Indian Penal Code framed against each of them. While the present appeal has been filed by the State (prosecution), the connected one has been preferred by Balwinder Singh, PW-1 brother of deceased Krishna on the grounds inter-alia that learned trial Court has gone wrong while acquitting the accused of the charge framed against each of them because the evidence produced by the prosecution is stated to be not appreciated in its right perspective and the findings to the contrary have been based on hypothesis, surmises and conjectures. It is pointed out that unimpeachable evidence as has come on record by way of testimony of Balwinder Singh PW-1, ::: Downloaded on - 15/04/2017 21:18:09 :::HCHP 3 Smt. Taro Devi PW-2 and Gurbhag Singh PW-10 corroborated by the testimony of Shri Hari Chand PW-3, .
the Pradhan of village Gochar and Sh. Sukhdev PW-4, the Mediator, having settled the marriage of deceased with accused Subnash Chand has erroneously been of ignored and brushed aside. The testimony of Smt. Swarani Devi PW-8 who was posted as Helper in rt Anganwari Centre at village Mukrer on 27.10.2008 when deceased who had been working as Anganwari Worker in the Centre came to duty was not looking well and she left the centre leaving behind her belongings including purse there is also ignored. It is canvassed that deceased was driven to such a stage that she left the matrimonial house and her dead-body was recovered from the canal of Kotla Power House. It is pointed out that the witnesses had no enmity with the accused persons and as such there is no reason of their deposing falsely against them. The complainant PW-1 who claims himself to be the victim of the occurrence has also challenged the impugned judgment on more or less similar grounds.
Additionally, that the demand of `60,000/- by accused ::: Downloaded on - 15/04/2017 21:18:09 :::HCHP 4 Subhash Chand and payment thereof coupled with the evidence on record that accused persons started .
treating deceased with cruelty immediately after the marriage i.e. 5-6 months. It was a case where the suicide has been committed by the deceased and it is the of accused who abetted the commission of suicide by her.
2. Now if coming to the factual matrix, late Shri rt Ram Lal was married to PW-2 Taro Devi. They belong to village Gochar, Tehsil Anandpur Sahib under Police Station, Nurpur Bedi, District Ropar (Punjab). Three issues i.e. two male and one female were born to the couple.
They are PW-1 Balwinder Singh, PW-10 Gurbhag Singh and deceased Krishna Devi. With the intervention of PW-
4 Sukhdev, marriage of Krishna Devi (since dead) was solemnized with accused Subhash Chand (hereinafter referred to as 'accused No. 1'). The remaining accused Kashmira Devi (hereinafter referred to as 'accused No. 2') is the mother of accused No. 1, whereas Kamal Dev and Kesho Devi (hereinafter referred as 'accused No. 3 and 4' respectively) are brother and sister-in-law ('Bhabi' of principal accused, accused No. 1 Subhash Chand).
::: Downloaded on - 15/04/2017 21:18:09 :::HCHP 53. The allegations against the accused persons are that after 5-6 months of marriage of deceased with .
accused No. 1, they started treating her with cruelty at the pretext of bringing insufficient dowry. On this, accused No. 1 was called by the complainant party to of there place at village Gochar and reprimanded as to why deceased was being tortured by them in presence rt of respectable persons residing there. He confessed his guilt and assured to mend his behaviour and also that there will be no maltreatment and harassment of the deceased in future, but of no avail as the said accused irrespective of the assurance so given had demanded a sum of `60,000/- through deceased from the complainant to purchase a vehicle. The amount so demanded by him was also paid by PW-2, the mother of deceased. The maltreatment and harassment of deceased, however, did not stop as the accused persons continued in torturing and treating her with cruelty at the pretext that her parents had given insufficient dowry to her. She was being coerced having not begotten a male child and given birth to three ::: Downloaded on - 15/04/2017 21:18:09 :::HCHP 6 female children. She was beaten with 'Thappi' (a cricket bat like wooden article meant for washing cloth). During .
the night intervening, 26/27.10.2008 i.e. in the morning on 27.10.2008, she went to attend her duties in Anganwari Centre, Makrer. The deceased was not looking well as of Smt. Swarani Devi, PW-8, the Anganwari Helper felt. The deceased left the centre without saying anything to PW-
rt 8 and living behind her purse there. When she did not turn up till 28.10.2008, her father-in-law had lodged the report Ex. PW-16/D in police station Bananga that his daughter-in-law Smt. Krishna Devi is missing from the house. The intimation was given to complainant party.
PW-1 went to the house of accused at village Chnagar Mukreri, Tehsil Bangana, District Una along with other villagers where he came to know that his sister had left the matrimonial home on 27.10.2008 after being tortured by the accused persons. She was searched everywhere, however could not be traced out. On 1.11.2008, one Ashok Kumar belonging to village Lamlehari had given information to the police of police station Bangana that dead body of Krishna Devi missing ::: Downloaded on - 15/04/2017 21:18:09 :::HCHP 7 from her house was lying in the canal of Kotla Power House. The information so received was reduced into .
writing in rapat Rojnamcha Ex.PW-16/C. On receipt of such information, the I.O. PW-18 ASI Manoj Kumar, accompanied by HHC Gurpiara rushed to the spot. It is of he who had recorded the statement Ex.PW-1/B of the complainant PW-1 on the basis whereof F.I.R. Ex.PW-16/A rt was recorded in Police Station Bangna, District, Una, H.P. The dead body was taken out from the canal. The inquest papers Ex.PW-15/B and PW-15/C were prepared.
The application Ex.PW15/A was moved to the Medical Officer, Civil Hospital Anadndpur Sahib for getting the post mortem of the dead body conducted. The post mortem was conducted by PW-15, Dr. Sandeep Singh.
The post mortem report is Ex.PW15/D. In the opinion of PW-15, the cause of death was drowning in water. After the postmortem, the dead body was handed over to PW-1, brother of deceased vide memo Ex.PW-1/A. The map of canal of Kotla Power House Ex.PW-17/A was prepared. The map of the house of the accused Ex.PW-
17/B and that Ex.PW-17/C of the place from where the ::: Downloaded on - 15/04/2017 21:18:09 :::HCHP 8 deceased jumped into the canal were also prepared.
The dead body was photographed vide photographs .
Ex.P-1 to P-9. Accused Subhash Chand has made a disclosure statement Ex.PW-14/A and got recovered 'Thappi', the sketch whereof is Ex.PW-7/B, in the of presence of the witnesses. The report Ex.PW-14/A was received from the Chemical Examiner.
4. rt The Investing Agency on the completion of investigation has filed the challan against all the accused. Learned trial Court having gone through the challan and documents annexed therewith found a prima-facie case having been made out against each of the accused under Sections 498-A, 304-B, 306 read with Section 34 of the Indian Penal Code. They all were charged accordingly. The accused, however, pleaded not guilty to the charge so framed against them and as they claimed trial, therefore, the trial Court proceeded to record the prosecution evidence.
5. The material prosecution witnesses are Sh.
Balwinder Singh the complainant, PW-1, the brother of deceased, Smt. Taro Devi, PW-2, the mother of ::: Downloaded on - 15/04/2017 21:18:09 :::HCHP 9 deceased, Sh. Hari Chand, PW-3, the then Pardhan of Village Gochar, Sh. Sukhdev, PW-4, who had settled the .
marriage of the deceased with accused Subhash Chand, whereas, that of Shindo, the sister of the said accused with PW-10, Gurbhag Singh, the brother of of deceased Krishna Devi. Smt. Swarani Devi, PW-8 is helper of Anganwari Centre, Mukrer. The remaining rt prosecution witnesses are formal as they remained associated during the course of the investigation in one way or the other.
6. The accused in their statements recorded under Section 313 of the Code of Criminal Procedure have denied all incriminating circumstances appearing in the prosecution evidence against them either being wrong or for want of knowledge. Accused Kesho Devi in her defence has pleaded that she and her husband accused Banta Ram had nothing to do with the present case as they both were residing separately from the principal accused Subhash Chand. They however, not intended to produce any evidence in their defence.
::: Downloaded on - 15/04/2017 21:18:09 :::HCHP 107. Learned trial Court on appreciation of the given facts and circumstances and also the evidence .
available on record, however, concluded that the prosecution has failed to prove its case against the accused persons beyond all reasonable doubts and of consequently, they all have been acquitted of the charge framed against each of them.
8. rt Learned Additional Advocate General has argued with all vehemence that prosecution evidence as has come on record by way of testimony of PW-1, PW-
2, PW-3 and PW-4 amply demonstrate that it is the accused who had been torturing and harassing the deceased not only physically but mentally also and this was the only cause of commission of suicide by her in the matrimonial home within four years of her marriage with accused Subhash Chand. Learned Additional Advocate General has thus urged that it is the accused who has abetted the commission of suicide by her. Therefore, all the accused persons have been sought to be convicted.
::: Downloaded on - 15/04/2017 21:18:09 :::HCHP 119. Mr. H.S. Rana, learned counsel appearing on behalf of the complainant-victim of the occurrence, .
(appellant in connected appeal) while supporting the arguments addressed on behalf of the respondent-state has urged that the deceased his sister Krishna Devi has of died in an unnatural death and it is the accused alone who had abetted the commission of suicide by her.
10. rt On the other hand, Shri Ramesh Sharma, learned defence counsel while repelling the submissions made on behalf of the prosecution and also on that of the complainant has urged that the ingredients of commission of offence punishable under Section 498-A, 304-B and 306 of the Indian Penal Code are not at all established and rather according to Mr. Sharma the evidence available on record reveals that the relations of the two families were cordial and it is for this reason Smt. Shindo, the sister of accused Subhash Chand was married to the brother of deceased and she according to him is living happily in the matrimonial home. It is pointed out that the cause of commission of suicide by the deceased would be depression on account of she ::: Downloaded on - 15/04/2017 21:18:09 :::HCHP 12 having given birth to three female children. Otherwise no apparent reason seems to be there due to which the .
deceased was forced to take such a drastic step.
11. A Division Bench of this Court in State of H.P. V. Pradeep Singh and another, Latest HLJ 2013(HP) 1431, of after placing reliance on the law down by the Apex Court by way of various judicial pronouncements has rt discussed in detail as to under what circumstances, it can be believed that the deceased was being tortured by her in-laws at the pretext of bringing insufficient dowry and what are the relevant factors to infer the abetment of commission of suicide by a married woman in the matrimonial home. This judgment reads as follows:
"10. At the outset it is desirable 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 to cruelty the wife by her husband or 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 ::: Downloaded on - 15/04/2017 21:18:09 :::HCHP 13 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.
11. 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 of 498-A IPC is to be established in the context of Section 498-A IPC as it may be different from other statutory provisions. It is to be rt determined/ inferred 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."
12. 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 doubt that some person has ::: Downloaded on - 15/04/2017 21:18:09 :::HCHP 14 committed suicide as a result of abetment by the accused.
.
13. In the case in hand, the deceased had committed suicide on 25.5.2008 in her matrimonial home at village Nau-Shehra, District Kangra, H.P. One of the ingredients of the commission of offence under Section 498-A IPC, therefore, stands of proved. The prosecution, however, is further required to prove that it is the accused alone who had abetted the commission of suicide by the rt deceased.
14. 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.
15. Now if coming to the case in hand, whether it is the accused alone, who instigated the deceased to commit suicide within the meaning of Section 107 IPC, has to be seen from the evidence available on record. It is worthwhile to mention ::: Downloaded on - 15/04/2017 21:18:09 :::HCHP 15 here that in a case of this nature, torture and harassment ordinarily is meted out to the victim in .
the four walls of the house and such cases mostly depend upon the circumstantial evidence. In the absence of direct evidence, the legislature in its wisdom has enacted Section 113-A of the Indian Evidence Act which provides that if a married of woman commits suicide within the period of seven years from the date of marriage and there are allegations that she did so because of being rt subjected to cruelty either by her husband or relatives of her husband or by both. Having regard to all other circumstances, the Court can presume that she has committed suicide on being abetted by her husband or by such relatives of her husband. The Apex Court in Wazir Chand and another versus State of Haryana (1989) 1 Supreme Court Cases 244 has held that if any person instigates any other person to commit suicide and as a result of such instigation, the other person commits suicide, the person causing the instigation is liable to be punished under Section 306 of the Indian Penal Code."
12. Besides, under what circumstances the presumption as envisaged under Section 113-A of the Evidence Act can be drawn against an offender in a ::: Downloaded on - 15/04/2017 21:18:09 :::HCHP 16 case of this nature, we can draw support in this regard also from the judgment in Pradeep Singh's case cited .
supra, which reads as follows:
"16. In a case of suicidal death, the onus to prove that suicide was abetted by the accused alone is on the prosecution and to of raise the presumption under Section 113-A of the Evidence Act, one of the ingredients that the deceased was subjected to cruelty is rt required to be proved first by the prosecution."
13. The prosecution in order to infer the commission of such an offence is required to plead and prove beyond all reasonable doubt that a married woman has died otherwise then under normal circumstances within seven years of her marriage.
Additionally, soon after her marriage, she was subjected to cruelty or harassment by her husband or his relations in connection with demand for dowry. Whether the prosecution has been able in the case in hand to prove its case within the legal parameters discussed hereinabove needs reappraisal of the given facts and ::: Downloaded on - 15/04/2017 21:18:09 :::HCHP 17 circumstances and also the evidence available on record.
.
14. As per facts, which are not in dispute, the deceased was married to accused Subhash Chand in the year 2003. She has committed suicide and died in of an unnatural death on 1.11.2008 i.e. within seven years of her marriage with the said accused. In order to prove rt that the accused persons have started treating the deceased with cruelty in connection with demand for dowry, the prosecution has placed reliance on Ext. PW-
1/B, the statement under Section 154 of the Code of Criminal Procedure made by the complainant PW-1 before the police and on the basis whereof FIR Ext. PW-
16/A has been recorded. The contents of this document that all the accused started treating the deceased with cruelty after 5-6 months of marriage at the pretext that sufficient dowry was not brought by her at the time of her marriage and that she was being tortured on account of having given birth to three female issues and not begotten a male issue, though finds corroboration from the testimony of PW-1 Balwinder Singh brother of ::: Downloaded on - 15/04/2017 21:18:09 :::HCHP 18 deceased, Smt. Taro Devi, PW-2 her mother, Sh. Sukhdev PW-4, the so called Mediator having settled the marriage .
of deceased with accused Subhash Chand and Sh.
Gurbhag Singh, PW-10, another brother of the deceased, however, it is difficult to believe this part of of the prosecution case as true and correct for the reason that PW-10, the brother of deceased was engaged with rt her 'Nanad' Shindo within one year of her marriage with accused Subhash Chand. Not only this but as per own case of the prosecution, marriage of PW-10 Gurbhag Singh and Shindo was solemnized in the year 2005. Such evidence amply demonstrates that the relations between two families were so cordial that complainant party has solemnized marriage of PW-10 with Shindo, sister of accused No. 1 Subhash Chand and accused No. 3 Kamal Dev, whereas, daughter of accused No. 2 Kashmiro and Nanad (sister-in-law) of accused No. 4.
Had the accused persons started torturing the deceased after 5-6 months of her marriage with accused Subhash Chand, there was no occasion for the complainant party to have solemnized the marriage of Shindo with ::: Downloaded on - 15/04/2017 21:18:09 :::HCHP 19 brother of the deceased, Gurbhag Singh. The accused party would also have not preferred to settle the .
marriage of Shindo with Gurbhag Singh PW-10. Not only this but Shindo as per own case of the prosecution is leading happy married life at the place of her in-laws i.e. of the complainant party. Therefore, the evidence as has come on record by way of testimony of PW-1, PW-2, PW-
rt 4 and PW-10 that accused started torturing the deceased with cruelty immediately after 5-6 months of her marriage at the pretext of demand for dowry and that the meetings of Panchayats were being convened after an interval of 5-6 months cannot be believed to be true for the reason that had it been so, by the time the marriage of Shindo settled with PW-10, the Panchayats would have met twice or thrice and as such, the relations between the parties would have become strained. In such a situation, there was no occasion to the parties on both sides to have agreed for the marriage of PW-10 with Shindo. The evidence to this effect, therefore, has been fabricated and engineered, most probably to implicate the accused persons falsely ::: Downloaded on - 15/04/2017 21:18:09 :::HCHP 20 in this case. True it is that as per version of PW-1 and that of his mother PW-2 as well as brother PW-10, accused .
Subhash Chand had demanded a sum of `60,000/- from them to purchase a vehicle. The said amount was paid by them to the said accused, however, even if it is of believed that `60,000/- was paid by PW-2 to her in-laws accused Subhash Chand, there is no iota of evidence to rt infer that the said accused has demanded the amount in question in dowry. The said amount rather may have been paid by him to his mother-in-law PW-2 for construction of 'Verandha' of her house before the marriage of his sister Shindo with PW-10 as pleaded by them in their defence and emerges from the trend of cross-examination of the prosecution witnesses conducted by learned defence counsel. Above all, the son-in-law if in need of money may raise loan from his in-
laws. Therefore, the payment, if any, of `60,000/- if taken by accused Subhash Chand from his mother-in-law, PW-
2, cannot be said to be in order to satisfy their demand for dowry. Irrespective of the above observations, it is not known as to when this amount was paid to accused ::: Downloaded on - 15/04/2017 21:18:10 :::HCHP 21 Subhash Chand because as per version of PW-2, it was paid somewhere in 2006, whereas, as per that of PW-10 .
somewhere in April-May, 2004. Such contradictory version casts a serious doubt qua the payment of this amount to accused Subhash Chand. If coming to the of version of PW-3 Hari Chand, ex-Pradhan of Village Gochar, the Panchayat was called to resolve the rt dispute between the couple i.e. deceased and accused Subhash Chand two years before the unfortunate incident i.e. somewhere in 2006. His testimony, therefore, belies the evidence as has come on record by way of testimony of PW-1, PW-2, PW-4 and PW-10 that the accused started torturing the deceased after about 5-6 months of her marriage and the Panchayat was called to resolve the dispute. The story regarding calling of local Panchayat seems to have been fabricated and engineered to falsely implicate the accused persons in the commission of alleged offence because PW-10 Gurbhag Singh has nowhere stated that the Panchayats were called at any point of time. Rather, as per his version, it is accused Subhash Chand, who once was ::: Downloaded on - 15/04/2017 21:18:10 :::HCHP 22 called by them to their house to resolve the dispute between the couple. On one occasion, he along his .
maternal uncle Gurmel had gone to the house of accused to resolve the dispute. The recovery of 'Thappi', consequent upon the disclosure made by of accused Subhash Chand has been vigorously relied upon by the prosecution to prove that immediately rt before the commission of suicide by the deceased, she was beaten by the said accused with 'Thappi'. Such evidence seems to have been created to prove the involvement of the accused in the commission of offence punishable under Section 304-B of the Indian Penal Code, however, unsuccessfully because in the opinion of doctor PW-15, no mark of injuries were there on the body of the deceased. Had the beatings been given with an object like 'Thappi', the mark of injuries on the body of deceased were bound to occur. Therefore, on this score also, the prosecution case falls to the ground. The re-appraisal of the evidence in the manner as aforesaid leads to the only conclusion that the deceased has neither been tortured nor harassed in ::: Downloaded on - 15/04/2017 21:18:10 :::HCHP 23 connection with demand for dowry by either of the accused nor they abetted the commission of suicide by .
her. The plea in their defence that on account of having given birth to three female children, she used to remain under stress, strain and depression also and that it is for of this reason she committed suicide, appears to be nearer to the factual position. It is not always necessary that rt suicide is committed by a married woman only on account of she being subjected to cruelty by her husband and his relatives because sometime it is the temperament and approach of a person to various issues come across in his/her life also persuade him/her to take such a drastic step. When cogent and reliable evidence to substantiate that the deceased has committed suicide only on account of being tortured by the accused persons, the possibility of she having taken such a drastic step on account of being under stress, strain and depression, cannot be ruled-out.
15. True it is that this incident has taken away the life of a young woman aged 28 years within seven years of her marriage with accused Subhash Chand. The ::: Downloaded on - 15/04/2017 21:18:10 :::HCHP 24 presumption under Section 113-A of the Indian Evidence Act, however, cannot be drawn in this case because the .
prosecution has failed to discharge the initial onus upon it that deceased has committed suicide only on account of her harassment by the accused. Presumption under of Section 113-B of the Evidence Act cannot also be drawn in this case because it is not proved that the accused rt used to demand dowry from the deceased and had been torturing her mentally as well as physically in connection with their demand for dowry.
16. As a matter of fact, the present is a case where nothing suggesting that the deceased was being tortured or harassed by the accused persons in connection with demand of dowry or otherwise or that the degree of cruelty was so high that she could not make comparison between life and death and rather in such a state of mind, chosen the pangs of death has come on record. True it is that in normal circumstances, no person is expected to take such a drastic step to do away with his/her life, that too, without there being any cause, however, present is not a case where it can be ::: Downloaded on - 15/04/2017 21:18:10 :::HCHP 25 said that the accused persons had abetted the commission of suicide by the deceased.
.
17. In view of what has been said hereinabove, both the appeals fail and the same are accordingly dismissed. The personal bonds furnished by all the of accused persons shall stand cancelled and the sureties discharged.
rt (Dharam Chand Chaudhary)
Judge
(Chander Bhusan Barowalia )
September 23, 2016 Judge
(naveen)
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