Himachal Pradesh High Court
State Of H.P vs Subhash Chand And Another on 3 June, 2015
Bench: Rajiv Sharma, Sureshwar Thakur
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 262 of 2009.
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Reserved on: 29.05.2015 Date of Decision : 3rd June, 2015.
State of H.P. .....Appellant.
Versus
Subhash Chand and another .....Respondents.
Coram r to
The Hon'ble Mr. Justice Rajiv Sharma, Judge.
The Hon'ble Mr. Justice Sureshwar Thakur, Judge.
Whether approved for reporting? Yes.
For the Appellant: Mr. Ramesh Thakur, Assistant Advocate General.
For the Respondents: Mr. Rajesh Mandhotra, Advocate.
____________________________________________ Sureshwar Thakur, Judge The instant appeal is directed by the State against the judgment rendered on 3.10.2008 by the learned Sessions Judge, Hamirpur, District Hamirpur, in Sessions trial No. 09 of 2008, whereby, the learned trial Court acquitted the accused for theirs ::: Downloaded on - 15/04/2017 18:19:35 :::HCHP 2 having allegedly committed the offences punishable under Sections 498-A and 306 read with Section 34 of the Indian Penal .
Code.
2. Brief facts of the case are that on July 25, 2007, Ramesh Chand son of Jai Singh, resident of Village Tikker telephonically informed Police Station, Sadar Hamirpur that Rajni Devi had committed suicide during the previous night by setting herself afire. Such report was entered in the daily diary and the Investigating Officer proceeded to the spot.
r He recorded the statement of Smt. Champa Devi wife of Sh. Prem Chand under Section 154, Cr.P.C., disclosing therein that she belongs to Village Tikker in Tehsil Hamirpur. Her husband is a labourer. She gave birth to four daughters and two sons. One daughter, namely, Rajni Devi was married about five years back to accused Subhash Chand according to Hindu rites and customs and adequate dowry was given. However, Rajni Devi could not bear a child. It was reported that accused had been physically beating her and maltreating her for not bearing a child. Once she had come to her parental house and she was taken back to the matrimonial house ::: Downloaded on - 15/04/2017 18:19:35 :::HCHP 3 after three months with the intervention of some relatives. On the previous night of July 25, 2007 at about 12 O'clock, Rajni Devi .
telephoned her mother and disclosed that the accused were altogether present in the house and they were torturing her by saying that she was 'Banjh" and that Subhash would remarry. She was calmed down by the complainant by saying that they would talk in this behalf later on. At about 2.30 a.m., Sulekha, sister of Subhash Chand telephoned the complainant that Rajni Devi had sprinkled kerosene oil on her and she sustained burn injuries. So the informant and her husband went to the house of Rajni Devi, but the house was found locked. They came to know that Rajni Devi had been shifted to Dandru. So they went to Dandru, but Rajni had died by that time. It was reported that Rajni committed suicide due to torture and cruelty meted out to her by the aforesaid accused Subhash Chand and Sumna Devi. On the basis of aforesaid statement FIR was registered in the police station.
The case was investigated into by the Investigating Officer and during the course of Investigation, the IO prepared site plan, got the body of the deceased photographed, prepared the inquest ::: Downloaded on - 15/04/2017 18:19:35 :::HCHP 4 report and also obtained the post mortem report. The investigating Officer also took into possession the burnt salwar .
and half burnt piece of cloth along with match box from the spot.
The Investigating Officer also took into possession one canny of kerosene oil from the kitchen of the accused. The viscera etc., were sent to the FSL, Junga and procured the report to this effect.
As per the post mortem report, the cause of death of Rajni Devi and death.
r to was extensive burns leading to neurogenic and hypovolunic shock
3. On conclusion of the investigation, into the offence, allegedly committed by the accused, report under Section 173 of the Code of Criminal Procedure was prepared and filed in the Court.
4. Accused were charged for theirs having committed the offences punishable under Sections 498-A and 306 read with Section 34 of the IPC, by the learned trial Court to which they pleaded not guilty and claimed trial.
5. In order to prove its case, the prosecution examined twenty 15 witnesses. On closure of prosecution evidence, the ::: Downloaded on - 15/04/2017 18:19:35 :::HCHP 5 statements of the accused, under Section 313 of the Code of Criminal Procedure were recorded in which they pleaded .
innocence and no evidence was led by them in defence.
6. On appraisal of the evidence on record, the learned trial Court, returned findings of acquittal in favour of the accused.
7. The State is aggrieved by the judgment of acquittal recorded by the learned trial Court. The learned Assistant Advocate General has concertedly and vigorously contended that the findings of acquittal recorded by the learned trial Court are not based on a proper appreciation of the evidence on record, rather, they are sequelled by gross mis-appreciation of the material on record. Hence, he contends that the findings of acquittal recorded by the learned trial Court be reversed by this Court in the exercise of its appellate jurisdiction and be replaced by findings of conviction.
8. On the other hand, the learned counsel appearing for the accused has with considerable force and vigour, contended that the findings of acquittal recorded by the Court below are based on a mature and balanced appreciation of evidence on ::: Downloaded on - 15/04/2017 18:19:35 :::HCHP 6 record and do not necessitate interference, rather merit vindication.
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9. This Court with the able assistance of the learned counsel on either side, has, with studied care and incision, evaluated the entire evidence on record.
10. Deceased Rajni Devi was married to accused Subhash Chand. She committed suicide on 24.07.2007 by setting herself afire. The postmortem report Ex.PW6/B proved by PW-6 Doctor Sunita Galodha emphatically underscores the factum of the demise of the deceased having been sequeled by burn injuries. Besides, there is a communication in the post mortem report of, no ante mortem injury/injuries having been observed by the examining doctor on the body of the deceased when subjected to postmortem. The marriage inter se accused Subhash Chand and deceased Rajni was solemnized five year prior to the occurrence.
However, the deceased did not bear any child. The primary allegation, raised by the complainant, PW-1 Smt. Chamapa Devi against the accused in her deposition and its traumatizing the mental psyche of the deceased, as such, constituting perpetration ::: Downloaded on - 15/04/2017 18:19:35 :::HCHP 7 of mental cruelty upon her is comprised in the factum of hers being taunted or tormented by the accused for hers not bearing a .
child. Even the complainant, PW-1 has in her testimony recorded on oath voiced therein the fact of the accused belabouring the deceased on the score of hers not bearing a child, as such, even an attribution of physical cruelty is made by the complainant against the accused. Cruelty, both physical as well as mental arising from the facts aforesaid voiced by the complainant in her deposition on oath allegedly fomented or instigated the deceased to commit suicide. The purported mental and physical cruelty attributed by the complainant to the accused would have an inculpatory effect only in the event of substantiation by cogent evidence qua the factum of both purported acts of physical or mental cruelty being both grave as well of an accentuated degree so as to foment or goad the deceased to commit suicide. Besides, the acts attributed to the accused spurring mental as well as physical cruelty were enjoined to be proved to have occurred in immediate proximity to the occurrence. Even though, PW-1 in her deposition on oath records the fact of in immediate proximity to ::: Downloaded on - 15/04/2017 18:19:35 :::HCHP 8 the occurrence, the accused having belaboured the deceased, hence the perpetration of physical cruelty on the deceased in close .
proximity to the fateful occurrence/incident, may render it to be construable to be an instigatory or fomentary cause for the deceased to commit suicide. However, the factum of the accused having perpetrated physical cruelty upon the deceased in the night previous to the fateful occurrence, hence, in close proximity to the fateful occurrence stands in the realm of a pure invention or concoction at the instance of PW-1 on two counts i.e. :- (a) the post mortem report omitting to divulge therein existence of ante mortem injuries on the body of the deceased and (b) the lack of or omission of a disclosure with specificity in timing of the purported belabourings delivered by the accused upon the deceased by the complainant in he previous statement recorded in writing, renders the deposition on oath of PW-1 qua the factum of belabourings meted by the accused to the deceased to be hence not construable to be in close proximity to the fateful occurrence.
Necessarily, then want of potent evidence displaying the fact that the purported belabourings meted by the accused upon the ::: Downloaded on - 15/04/2017 18:19:35 :::HCHP 9 person of the deceased which instigated or goaded her to commit suicide, were in close proximity to the fateful occurrence, as such, .
the beatings, if any, delivered by the accused upon the person of the deceased purportedly constituting perpetration of physical cruelty by the accused upon her which purportedly drove her to commit suicide cannot obviously to be construed to have instigated or fomented the fateful event/incident. Further more, the gravamen of the allegations of the prosecution against the accused is of theirs having traumatized the psyche of the deceased by subjecting her to maltreatment and ill-treatment for hers not bearing a child, also ought to be discountenanced by this Court on the score of the timing qua perpetration of maltreatment or ill-treatment by the accused upon the deceased on the score aforesaid having been omitted to be divulged with precision at the first instance by the complainant. Obviously then with imprecision qua the time of meting of maltreatment and ill-treatment upon the deceased by the accused constituted by their acts of tormenting her or taunting her for not rearing or bearing a child and theirs constituting traumatization of her mental psyche for goading her ::: Downloaded on - 15/04/2017 18:19:35 :::HCHP 10 to commit suicide, as a corollary dis-empowers this Court or defacilitates this Court to conclude that the maltreatment or ill-
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treatment on the score aforesaid meted by the accused upon the person of the deceased was neither in close proximity to the fateful occurrence nor it can be construed to be the fomentary cause for the deceased to commit suicide.
11. Furthermore, the factum of an occurrence in the testimony of PW-1 qua demand of dowry having been raised by the accused from the deceased is to be construable to be not constituting maltreatment or ill-treatment meted by the accused to the deceased which ultimately instigated her to commit suicide especially when there is want of a disclosure with precision qua the time when such demands of dowry were raised.
Consequently, with imprecision qua the time when such demands of dowry were raised by the accused, renders open an inference that the demands of dowry, if any, were raised, the same were raised improximate to the fateful occurrence. Hence, with the imprecision qua the timing of the demands of dowry raised by the accused while constituting perpetration of maltreatment and ::: Downloaded on - 15/04/2017 18:19:35 :::HCHP 11 ill-treatment upon the deceased cannot render them to be construable to be a fomentary or actuatory cause for the deceased .
to commit suicide. A wholesome analysis of the deposition of PW-
1-complainant gives leeway to an inference that the deposition on oath of PW-1 comprised in her examination-in-chief qua the accused having subjected the deceased to mental as well as physical cruelty arising from the facts aforesaid are incredible. In sequel her testimony does not inspire confidence qua the fact of the accused having, by taunting her for hers not bearing a child, maltreated and ill-treated the deceased hence traumatized her mental psyche and that too in close proximity to the fateful occurrence, as so to goad her or foment her to commit suicide.
12. Moreover, the departure of the deceased to her parental home where she stayed for three months and when she on a compromise having been arrived into inter se her and the accused returned along with her husband to her matrimonial home, though concerted by the prosecution to bring home the fact of an existing discord inter se the accused and the deceased.
Nonetheless, the fact aforesaid of bickerings existing inter se the ::: Downloaded on - 15/04/2017 18:19:35 :::HCHP 12 deceased and the accused, though purportedly portray the substantiation of maltreatment meted out to the deceased by the .
accused yet even the fact aforesaid stands to be discarded rather is belittled by the deposition of PW-4, who, to the contrary, in her deposition deposed that the deceased had come to his parental home on account her ailment, as such, it cannot be construed that she on account of hers having been maltreated or ill-treated by the accused left for her parental home. The deposition of PW-2, Reena Devi bespeaks the factum of the accused torturing the deceased for her inability to bear a child. The torture as perpetrated by the accused upon the deceased has been deposed by her to have led her to come to her parental house whereafter she was taken back to her matrimonial home by accused Subhash Chand and her sister. However, her statement existing in her examination-in-chief, on further incisive evaluation of her deposition comprised in her cross-examination stands overwhelmed especially when she therein deposes that she cannot recall the date, month and year of the incident aforesaid, as such, when she concedes to the factum of there being no disclosure ::: Downloaded on - 15/04/2017 18:19:35 :::HCHP 13 with precision qua the date, month and year of maltreatment, in sequel, it has to be inferred that her statement cannot, facilitate .
this Court to render, a conclusive finding that the accused in close proximity to the fateful occurrence perpetrated physical as well as mental cruelty upon the deceased so as to constitute such maltreatment and ill-treatment, to be an instigatory factor for fomenting or goading the deceased to commit suicide, rather her generalized statement is shaky or nebulous for formidably concluding that it constitutes the best evidence with precision qua the time of the meting of the purported acts of maltreatment or ill-
treatment upon the deceased by the accused. Obviously, for reiteration with the imprecision qua the timing of attribution by PW-2 to the accused of the purported acts of maltreatment and ill-
treatment which purportedly instigated the deceased to commit suicide, they are to be construable to be improximate to the fateful occurrence, besides lacking in potency and vigour to hence drive or instigate the deceased to commit suicide. Both, the PW-
1 and PW-2 are interested witnesses being relatives of the deceased. Even though the testimonies of interested witnesses are ::: Downloaded on - 15/04/2017 18:19:35 :::HCHP 14 not discardable, however, when their testimonies are ridden with or seeped with grave infirmities or are discrepant for recording .
findings qua the guilt of the accused necessarily then their probative worth stands denuded. Apart from the recording of the depositions of the interested witnesses, whose testimonies are discardable for the reasons aforesaid, the investigating conducted by the Investigating Officer has to be faulted for his inability to record the statements of the local independent witnesses, where the deceased resided. However, apart from the testimonies of the interested witnesses, the Investigating Officer has not recorded the statements of the persons residing in the immediate neighbourhood of the deceased. The omission of recording of statements of the persons residing in the immediate neighbourhood of the deceased would render the investigation carried out by the Investigating Officer to be acquiring the taint and vice of partisanship. Besides, the independent witnesses/ persons residing in the neighbourhood of the deceased would have constituted the independent and best evidence qua the allegations leveled against the accused by the complainant. The ::: Downloaded on - 15/04/2017 18:19:35 :::HCHP 15 omission by the Investigating Officer to join the persons residing in the neighbourhood of the deceased, fosters an conclusion that .
they have been omitted to be joined by the Investigating Officer as he carried out a slanted and tainted investigation qua the incident. Obviously, no implicit reliance can be placed upon by this Court upon a slanted and tainted investigation carried out by the Investigating Officer. The only effort made by the Investigating Officer to join independent witnesses is by his proceeding to record the testimony of PW-4. However, PW-4 has turned hostile and has not supported the prosecution case. Hers being an independent witness and hers not supporting the prosecution case has delivered a severe jolt to the genesis of the prosecution case anvilled upon the testimonies of the interested witnesses, inasmuch as on the testimonies of PW-1 and PW-2.
Her testimony assumes significance, inasmuch as she therein has undermined the efficacy of the deposition of PW-1 qua the fact of existence of discord and estrangement in the marital relations inter se the accused and the deceased, which purportedly led the deceased to come to her parental home whereafter on a ::: Downloaded on - 15/04/2017 18:19:35 :::HCHP 16 compromise having been struck inter se the deceased and the accused she along with accused having returned to her .
matrimonial home. Furthermore, on the contrary, when she deposes that the deceased had come to her parental home as she had fallen ill belittles the legal worth of the testimonies of PW-1 and PW-2 of the deceased having come to his parental home on account of maltreatment and ill-treatment having been meted out to her by the accused at her matrimonial home. Moreover, it renders rudderless the testimonies of PW-1 and PW-2 that it was only on a compromise having been struck inter se the accused and the deceased that the deceased returned to her matrimonial home. Hence no incident spurring maltreatment and ill-treatment meted by the accused upon the deceased having been with specificity in timing not substantiated by the prosecution to have occurred in close proximity to the fateful occurrence and it being of a grave enormity so as to constitute it, to be construable to be the fomentary cause for the deceased to commit suicide, rather there being generalized allegations of ill-treatment and maltreatment meted by the accused to the deceased which ::: Downloaded on - 15/04/2017 18:19:35 :::HCHP 17 while having remained in the realm of haziness are hence not at all to be construable to be the instigatory causes for the deceased .
to commit suicide. Preeminently, the deposition of PW-4 during the course of her cross-examination by the defence counsel that the accused never gave beatings to the deceased Rajni rather the deceased being under depression for not bearing a child committed the suicide, fosters an apt conclusion that the deceased dehors any instigation purportedly meted by the accused to her, had engineered her suicide.
r The fact of the deceased having engineered her suicide shorn of any instigation having been furnished by the purported inculpatory events attributed by the prosecution to the accused, gains further momentum from the fact of the deceased having disclosed to her on the fateful night that she had set herself afire as she was not bearing a child. The said deposition of PW-4 while constituting a dying declaration of the deceased, hence, has probative vigour, necessarily then it is un- discardable for forming a formidable conclusion that there is no substance in the attribution of an inculpatory role to the accused by the prosecution.
::: Downloaded on - 15/04/2017 18:19:35 :::HCHP 1813. A wholesome analysis of the evidence on record portrays that the appreciation of evidence as done by the learned .
trial Court does not suffer from any perversity and absurdity nor it can be said that the learned trial Court in recording findings of acquittal has committed any legal misdemeanor, inasmuch as it having mis-appreciated the evidence on record or omitted to appreciate relevant and admissible evidence. In aftermath this Court does not deem it fit and appropriate that the findings of acquittal recorded by the learned trial Court merit interference.
14. In view of the above discussion, we find no merit in this appeal which is accordingly dismissed and the judgment of the learned trial Court is affirmed and maintained. Record of the learned trial Court be sent back forthwith.
(Rajiv Sharma)
Judge
18th June, 2015 (Sureshwar Thakur)
(jai) Judge
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