Himachal Pradesh High Court
State Of Himachal Pradesh vs Kaur Singh Son Of Utam Singh & Others on 6 May, 2015
Author: P.S.Rana
Bench: Sanjay Karol, P.S.Rana
IN THE HIGH COURT OF HIMACHAL PRADESH, AT SHIMLA
Cr. Appeal No. 569 of 2008
Judgment reserved on: 17th March, 2015
.
Date of Decision: 8th April, 2015
_______________________________________________________________
State of Himachal Pradesh .....Appellant.
Vs.
Kaur Singh son of Utam Singh & others ...Respondents.
Coram:
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. Rajesh Mandhotra, Advocate.
P.S.Rana, J.
JUDGMENT: Present appeal is filed against the judgment of acquittal passed by learned Additional Sessions Judge Court No.1 Kangra at Dharamshala in Sessions case No. 1-N of 2006 decided on dated 28.3.2008.
Whether reporters of the Local papers are allowed to see the judgment?. Yes.
::: Downloaded on - 15/04/2017 18:07:13 :::HCHP 2BRIEF FACTS OF THE PROSECUTION CASE:
2. Brief facts of the case as alleged by prosecution .
are that deceased Veena @ Sanju Devi was married with co-
accused Kulwant about 10-12 years back. It is alleged by prosecution that co-accused Kaur Singh is father-in-law of deceased, co-accused Krishna Devi is mother-in-law of deceased, co-accused Parvesh Lata is sister-in-law and Ravindr is brother-in-law of deceased. It is alleged by prosecution that accused persons have committed cruelty with deceased Veena Devi for bringing insufficient dowry. It is alleged by prosecution that all accused persons used to call the deceased as 'Kanjar' (Person leading illicit life). It is further alleged by prosecution that deceased had narrated the incident of harassment to her father and her step mother and also narrated the incident of cruelty to Pardhan and ward member. It is alleged by prosecution that milk was not provided to the children of deceased Veena Devi and she has complained to her father two months prior to her death and thereafter on advice of Panchayat Pardhan complainant Chanda Singh had provided cow to deceased in order to arrange milk for her children. It is also alleged by prosecution that accused persons have cremated deceased Veena Devi ::: Downloaded on - 15/04/2017 18:07:13 :::HCHP 3 without informing her parents and destroyed the evidence. It is alleged by prosecution that FIR Ext.PW1/A was recorded in .
police station Nurpur and after registration of FIR statements of prosecution witnesses were recorded. It is also alleged by prosecution that site plan Ext.PW14/A was prepared where deceased was cremated and thereafter ash and bones at the spot were collected and sealed in separate piece of cloth. It is alleged by prosecution that deceased had committed suicide by way of consuming poison due to cruelty committed upon the deceased in her matrimonial house. It is alleged by prosecution that post mortem of deceased was not allowed to be conducted. It is also alleged by prosecution that ash and bones of deceased were collected from cremation site on dated 30.7.2004 after four days of cremation of dead body of deceased and sent to FSL Junga for chemical analysis through C. Dhani Ram who deposited the same in FSL Junga and chemical analyst report Ext.PA was sought.
3. Charge was framed against the accused persons by learned Additional Sessions Judge Court No.1 Kangra at Dharamshala on dated 21.6.2006 under Sections 498-A read with Section 34 IPC, under Section 306 read with Section 34 ::: Downloaded on - 15/04/2017 18:07:13 :::HCHP 4 IPC and under Section 201 read with Section 34 IPC. Accused person did not plead guilty and claimed trial.
.
4. Prosecution examined the following witnesses in support of its case:-
Sr.No. Name of Witness
PW1 Chanda Singh
PW2 Veena Devi
PW3 Roshan Lal
PW4 Baldev Singh
PW5 Balbir Singh
PW6 Harbans Singh
PW7 Joginder Singh
PW8 Kuldeep Singh
PW9 Ramesh Chaudhary
PW10. C. Dhani Ram
PW11 Anju
PW12 Dr. Sanjeev Aggarwal
PW13 Rajinder Singh
PW14 SI Parkash Chand
PW15 Inspector Nathu Ram
::: Downloaded on - 15/04/2017 18:07:13 :::HCHP
5
4.1 Prosecution also produced following piece of
documentary evidence in support of its case:-
.
Sr.No. Description:
Ex.PW1/A. FIR
Ex.PW13/A. Recovery memo
Ex.PW14/A Site plan
Ext.PW14/B Sample of seal
Ex.PW14/C Statements
Ext.PW14/H
Ext.PA Chemical Examiner report
Ext.P1 Parcel
Ex.P2 Ash and bones
&Ext.P3
5. Statements of the accused recorded under
Section 313 Cr.P.C. Accused did not lead any defence evidence. Learned trial Court acquitted all accused persons qua offence under Sections 498-A, 306 and 201 read with Section 34 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 18:07:13 :::HCHP 6 Advocate appearing on behalf of the respondent 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:
9.1. PW1 Chanda Singh has stated that he was married twice. He has stated that his first wife Leela Devi died and from loins of his first wife he has two daughters and one son.
He has stated that deceased Veena Devi @ Sanju was born from the loins of first wife. He has stated that deceased was married with co-accused Kalwant Singh about 10-12 years back and out of wedlock three children born. He has stated about 2/3 years before the death of Veena Devi she was harassed and beaten by accused persons present in Court. He has stated that accused persons used to harass and beat his daughter for bringing insufficient dowry and further stated that same fact was narrated to him directly by his deceased daughter Veena Devi. He has further stated that accused persons used to taunt deceased that she did not perform household work and also used to taunt the deceased that ::: Downloaded on - 15/04/2017 18:07:13 :::HCHP 7 father of deceased had married second time. He has stated that accused persons used to address his deceased daughter .
as 'Kanjar' (Person leading illicit life). He has stated that whenever deceased used to come to her parental house she used to disclose the facts of harassment and beating. He has stated that deceased has also informed the facts of cruelty to Pardhan and ward members Prem Singh and Baldev Singh. He has stated that two months prior to her death she had visited her parental house and directly told him that accused persons were not provided milk to her children. He has stated that thereafter he had given cow to his daughter on advice of Pardhan of Panchayat. He has stated that his son-in-law co-
accused Kulwant Singh is working in factory at Jammu. He has stated that on dated 25.7.2004 he came to know about 9 PM from Roshan about death of his daughter. He has stated that deceased had consumed poison because of harassment given to deceased by accused persons. He has stated that on dated 26.7.2004 he went to house of accused but dead body of his daughter was not found and deceased was already cremated by accused persons. He has stated that FIR Ext.PW1/A was lodged on police station Nurpur and further stated that at that time Pardhan, Prem Singh, his wife and Baldev Singh were ::: Downloaded on - 15/04/2017 18:07:13 :::HCHP 8 also with him. He has admitted that all three children of deceased Veena Devi are residing in the house of accused. He .
has denied suggestion that on dated 25.7.2004 Pawan Kumar came to his house on motor cycle and informed that his daughter died because of vomiting and dysentery. He has denied suggestion that accused persons had not harassed and beaten his deceased daughter. He has denied suggestion that accused persons have not told his deceased daughter that she was daughter of 'Kanjar' (Person leading illicit life). He has denied suggestion that deceased has not personally narrated to him the facts of harassment. He has denied suggestion that deceased had died natural death due to dehydration. He has denied suggestion that he has inimical relations with accused persons and due to inimical relations he has deposed falsely against accused persons in present case.
9.2 PW2 Veena Devi Pardhan Gram Panchayat has stated that PW1 Chanda Singh belonged to her village and deceased Veena Devi was daughter of Chanda Singh and was married to co-accused Kulwant Singh in the year 1994. She has stated that her house is situated adjacent to the house of Chanda. She has stated that 2/3 months prior to death of deceased Veena Devi visited her parental house and deceased ::: Downloaded on - 15/04/2017 18:07:13 :::HCHP 9 directly told her that she was ill-treated by accused persons for bringing insufficient dowry. She has stated that deceased .
has also told her directly that accused persons were taunting her that she did not perform the household work properly. She has stated that deceased also directly told her that deceased was beaten by accused persons. She has stated that deceased has also visited her parental house 2/3 months prior to her death and told that accused persons did not provide milk to her children and thereafter she requested her father to purchase a cow for deceased so that milk could be provided to children of deceased. She has stated that on dated 25.7.2004 she heard the cries of weeping from house of Chanda Singh and thereafter she went to the house of Chanda Singh and came to know about death of Veena Devi. She has stated that accused persons have not informed about death. She has stated that deceased had committed suicide by way of consuming poison as she was harassed and beaten by accused persons. She has admitted that children of deceased are residing in the house of accused. She has stated that she does not know that on dated 25.7.2004 at about 12 Noon Pawan Kumar co-villager of accused persons had visited the village on motor cycle and informed the parents of deceased ::: Downloaded on - 15/04/2017 18:07:13 :::HCHP 10 about death. She had denied suggestion that deceased had not disclosed any fact to her during her life time relating to .
harassment by accused persons. She has denied suggestion that deceased had not narrated to her any fact during her life time relating to beatings to deceased by accused persons. She has denied suggestion that she did not advice PW1 Chanda to purchase cow for deceased. She has denied suggestion that PW1 has not given any cow to deceased. She has denied suggestion that being co-villager and relative of deceased she had given statement to police after due deliberation in connivance with Chanda.
9.3 PW3 Roshan Lal has stated that on dated 25.7.2004 at about 8.30 PM he was at bus stop in connection with his personal work. He has stated that two boys came there on motor cycle and they asked about Chanda Singh. He has stated that he told them that there are 3-4 Chanda Singh in their village. He has stated that thereafter they told him that they wanted to inquire about Chanda Singh whose daughter was married to co-accused Kulwant Singh of village Randoh. He has stated that thereafter they told him to inform that his daughter had died. He has stated that he informed Chanda Singh at about 8.45 PM. He has stated that he does ::: Downloaded on - 15/04/2017 18:07:13 :::HCHP 11 not know that information about death of deceased was given to Chanda Singh at about 12 Noon. He has denied suggestion .
that he remained busy in deliberating false story against accused persons for about 2/3 days.
9.4 PW4 Baldev Singh has stated that he was BDC member during the year 2004 and further stated that he also remained Pardhan of G.P. Khehar. He has stated that he is familiar with Chanda Singh and further stated that Chanda Singh had married twice. He has stated that deceased Veena Devi was born from first wife. He has stated that deceased was married 8-10 years back with co-accused Kulwant Singh of village Randoh. He has stated that 2-3 years prior to death deceased came to her parents' house and told her father that accused were harassing her for bringing insufficient dowry. He has stated that deceased father has also personally told him that deceased was taunted and ill-treated by her husband, brother-in-law, sister-in-law, father-in-law and mother-in-law.
He has stated that he tried to console the deceased. He has further stated that deceased also came to her parental house two months prior to her death and told that accused were not providing milk to her children. He has stated that thereafter he asked the father of deceased Chanda Singh to purchase ::: Downloaded on - 15/04/2017 18:07:13 :::HCHP 12 cow for deceased so that she could provide milk to her children. He has stated that on dated 26.7.2004 early in the .
morning Chanda Singh came to his home and informed that his daughter was killed and her last rites were also performed without informing him. He has stated that thereafter he along with Pardhan of Gram Panchayat along with 2/3 persons went to village Randoh. He has stated that he inquired from father-
in-law of deceased as to how the deceased had died and thereafter father-in-law of deceased informed that deceased had died by consuming poison. He has stated that thereafter he also inquired from father-in-law of deceased as to why post mortem of deceased was not conducted but father-in-law of deceased did not reply. He has stated that deceased had died at 6 AM in the morning and was consigned to flames without giving intimation to parents of deceased. He has stated that deceased had died because of harassment given to her by accused persons. He has denied suggestion that deceased Veena Devi and her father Chanda Singh did not informed him about non-supply of milk to her children. He has denied suggestion that deceased Veena Devi and her father did not tell him about harassment and beatings on behalf of accused persons.
::: Downloaded on - 15/04/2017 18:07:13 :::HCHP 139.5 PW5 Balbir Singh has stated that Kaur Singh accused is his real uncle. He has stated that at about 6-7 AM .
he heard noise from house of Kaur Singh and thereafter he went to the house of Kaur Singh and he saw that Veena was vomiting in verandah of house. He has stated that Kaur Singh was not in his house and he arrived in house after some time.
He has stated that he, Bhuri Singh, Kaur Singh took the deceased Veena Devi to hospital in tractor and thereafter from Bhojpur they hired a jeep and took Veena Devi to the hospital in jeep. He has stated that he remained outside the hospital.
He has stated that he does not know what happened inside hospital because he had not gone inside hospital. The witness was declared hostile. He has stated that incident took place on dated 25.7.2004. He has denied suggestion that yellow water was emitting. He has denied suggestion that Kaur Singh had disclosed to medical officer that deceased Veena had consumed some poisonous substance. He has denied suggestion that medical officer had applied pipe to deceased and extracted the poisonous water from her body. He has denied suggestion that he has resiled from his earlier statement in order to save accused persons. He has admitted that co-accused Parvesh sister-in-law of deceased is married ::: Downloaded on - 15/04/2017 18:07:13 :::HCHP 14 and is residing in her in-laws house. He has stated that one Pawan Kumar was sent at 12 Noon to the house of parents of .
deceased on motor cycle for giving information to parents of deceased about death and he came back around 1 PM.
9.6 PW6 Harbans Singh has stated that after retirement from Army he was performing the agriculture work at village Randoh. He has stated that he heard noise from house of accused and thereafter he asked his wife and thereafter his wife told him that wife of co-accused Kulwant Singh had died. He has stated that thereafter he went to the house of co-accused. He has stated that dead body of deceased was kept in room and many people of village had assembled. He has stated that he told Kaur Singh to inform parents of deceased about death but he kept mum. He has stated that co-accused Kulwant arrived at 4 PM and thereafter dead body was took for last rites at about 5 PM. He has stated that he had also joined the funeral procession. He has stated that he does not know that accused persons have sent Pawan Kumar to the house of parents of deceased to inform them about death.
9.7 PW7 Joginder Singh has stated that after retiring from Army he is plying Mahindra jeep bearing number HP-38- ::: Downloaded on - 15/04/2017 18:07:13 :::HCHP 15 7203. He has stated that jeep is driven by him. He has stated that on dated 25.7.2004 Bhuri Singh of village Randoh came .
to his house and told that one lady was to be taken to hospital as she was unconscious. He has stated that lady was brought upto Bhojpur in tractor and thereafter she was took to Pathankot in private hospital in his jeep. He has stated that accused Kaur Singh, Manju and Balbir were accompanying the deceased. He has stated that lady was in unconscious condition and she was daughter-in-law of co-accused Kaur Singh. He has stated that deceased had vomited in the vehicle and further stated that deceased was took to Krishna hospital.
He has stated that he does not know what happened inside the hospital. He has stated that thereafter the person who took the lady to hospital came out and told that Veena had died. He has stated that thereafter he brought back the dead body to place near the village of accused. He has stated that thereafter he returned to his village.
9.8 PW8 Kuldeep Singh has stated that on dated 25.7.2004 he had gone to his fields at about 7 AM. He has stated that his sister-in-law came to him in field and told him that Veena was ill and she was to be taken to hospital. He has stated that he took his tractor and took deceased Veena upon ::: Downloaded on - 15/04/2017 18:07:13 :::HCHP 16 tractor upto Bhojpur. He has stated that Balbir Singh, Kaur Singh, Manju, Bhuri Singh were with deceased Veena Devi and .
further stated that Veena Devi was unconscious when he took her in his tractor. He has stated that thereafter from Bhojpur the deceased was took to hospital at Pathankot in jeep of Joginder. He has stated that thereafter they returned back at 10.30 AM with dead body of deceased. He has stated that dead body of deceased was consigned to flames at 4 PM. He has stated that he does not know what was consumed by deceased. The witness was declared hostile. He has stated that accused Kaur Singh is his real uncle and his wife is real aunt and other co-accused are his brother and sister. He has stated that he wanted that accused should be saved from criminal punishment. He has stated that he does not know whether Pawan was sent to the house of parents of deceased to inform about the death.
9.9 PW9 HC Ramesh Chaudhary has stated that in the year 2004 he was posted as MHC in P.S. Nurpur and on dated 23.7.2004 Parkash Chand had deposited with him one parcel sealed with seal 'M' containing bones and ash. He has stated that he recorded the entry in register and thereafter sent to FSL Junga through C. Dhani Ram vide RC No. 175/04. He has ::: Downloaded on - 15/04/2017 18:07:13 :::HCHP 17 stated that after depositing the articles in office of FSL Junga RC was returned by constable. He has stated that articles .
remained intact in his custody.
9.10, PW10 C. Dhani Ram has stated that in the year 2004 he was posted in P.S. Nurpur and further stated that on dated 10.10.2004 MHC Ramesh Chand handed over him one parcel, sample of seal and docket vide RC No. 175/04 for depositing the same in FSL Junga. He has stated that he 9.11 r to deposited the same in office in proper condition and further stated that articles remained intact during his custody.
PW11 Anju has stated that accused Kaur Singh is her father-in-law and her house is situated at about 30-40 feet from house of accused. She has stated that on dated 25.7.2004 she was milking the cow at 7 AM in her house. She has stated that Bhuri Singh came to her house and asked and inquired about Kuldeep Singh. She has stated that Kuldeep Singh is her brother-in-law. She has stated that when she reached in house of co-accused Kaur Singh at that time whole villagers were present there and she has stated that Veena was vomiting in verandah and she came to know that Veena was ill. She has stated that she does not know that what Veena Devi had consumed. She has stated that thereafter ::: Downloaded on - 15/04/2017 18:07:13 :::HCHP 18 Veena took to hospital in tractor of her brother-in-law and she, her husband, Kaur Singh and Bhuri Singh were also .
accompanying Veena Devi in tractor which was driven by her brother-in-law Kuldeep Singh. She has stated that they travelled in tractor upto Bhojpur and thereafter they went to Krishna hospital at Pathankot in a hired vehicle from there.
She has stated that at Krishna hospital the deceased was checked by medical officer. Again stated that she was sitting in vehicle and she does not know what was stated by doctor.
She has stated that from Krishna hospital they came back.
She has stated that Veena Devi had died on way to hospital.
She has stated that thereafter deceased was took to cremation place for her last rites. She has stated that Parmanand was sent to call the parents of deceased but none came from parents' side of deceased. She has denied suggestion that Bhuri Singh had told her that Beena Devi had consumed poison due to which she would be taken to hospital.
She has denied suggestion that doctor working in Krishna hospital informed that deceased had died due to consumption of poison. She has denied suggestion that deceased was not brought to government hospital deliberately by accused persons. She has denied suggestion that parents of deceased ::: Downloaded on - 15/04/2017 18:07:13 :::HCHP 19 were not informed about death of deceased. She has admitted that all accused are relatives i.e. father-in-law, mother-in-law .
and brother-in-law. She has denied suggestion that in order to save accused persons she has resiled from her previous statement. She has admitted that parents of deceased could not come on the day for cremation and they came on next day.
9.12 PW12 Dr. Sanjeev Aggarwal has stated that he was proprietor of Krishna hospital Pathankot. He has stated that he does not know what had actually happened. He has stated that some police officials came to the hospital for inquiries. He has denied suggestion that on dated 25.7.2004 accused persons present in Court have brought deceased Beena Devi to his clinic at about 8.30 AM. He has denied suggestion that he examined the deceased and told the accused to take the deceased to government hospital because deceased had consumed poison.
9.13 PW13 Rajinder has stated that he remained associated with police. He has stated that police has collected the ash and bones and were sealed in cloth parcel with seal 'M' and same were took into possession vide memo Ext.PW13/A. He has stated that he could not state that dead ::: Downloaded on - 15/04/2017 18:07:13 :::HCHP 20 body of deceased was consigned to flames in absence of her parents. He has stated that he does not know that accused .
persons have informed the police officials that cause of death of deceased was consumption of poison. Witness was declared hostile by prosecution. He has admitted that accused had helped his wife in the elections of Panchayat. He has denied suggestion that he has resiled from his earlier statement from portion 'A' to 'A' and 'B' to 'B' in order to give benefit to accused.
9.14 PW14 SI Parkash Chand has stated that during the year 2004 he was posted as ASI in P.S. Gangth. He has stated that FIR Ext.PW1/A was registered and matter was investigated. He has stated that he recorded statements of witnesses and thereafter he went to village Randoh. He has stated that he also went to cremation ground and prepared site plan Ext.PW14/A. He has stated that from cremation ground he collected ash and bones. He has stated that accused persons have not informed the parents of deceased and also did not inform the police officials qua consumption of poison by deceased. He has stated that accused persons destroyed the evidence by way of burning the dead body and thereafter took the bones to Haridwar on the same day. He ::: Downloaded on - 15/04/2017 18:07:13 :::HCHP 21 has stated that deceased had died on dated 25.7.2004. He has stated that no report of incident was lodged till dated .
30.7.2004. He has denied suggestion that deceased had died due to vomiting and dysentery. He has denied suggestion that FIR was lodged after due deliberation at the instance of Pardhan, Veena Devi, Baldev Singh and parents of deceased.
He has denied suggestion that he recorded the statements of witnesses according to his own choice. He has denied 9.15 r to suggestion that he has implicated the accused persons forcibly in false case.
PW15 Inspector Nathu Ram has stated that in the year 2004 he was posted as SHO P.S. Nurpur. He has stated that case file was taken by him for investigation on dated 1.8.2004. He has stated that he recorded statements of six witnesses correctly as per their versions. He has stated that after completion of investigation ASI Parkash Chand handed over the file to him. He has stated that after receipt of FSL report he prepared final report. He has denied suggestion that deceased was residing in her in-laws house properly. He has stated that deceased was treated in her matrimonial house with cruelty. He has denied suggestion that he recorded statements of witnesses according to his own choice.
::: Downloaded on - 15/04/2017 18:07:13 :::HCHP 2210. Statements of accused recorded under Section 313 Cr.P.C. Accused have stated that deceased had died due .
to natural death and further stated that deceased was not harassed in any manner and accused have also stated that parents of deceased were informed well in time and when they did not come only then deceased was cremated. Accused persons did not lead any defence evidence.
Submission of learned Additional Advocate
11. General appearing on behalf of the State that offence of abetment under Section 306 IPC is proved against accused persons beyond reasonable doubt is rejected being devoid of any force for the reasons hereinafter mentioned. It is well settled law that 'sui' means self and 'cide' means self-killing. It is well settled law that there should be direct nexus between abetment and suicide and there should be proximity of time between abetment and suicide. It is well settled law that there are two types of abetment (1) Active abetment (2) Passive abetment. Active abetment is done to end the life of deceased while in passive abetment something is not done to save the life of deceased. Court has carefully perused the testimonies of PW1 to PW15. There is no positive, cogent and reliable evidence on record in order to prove that accused persons ::: Downloaded on - 15/04/2017 18:07:13 :::HCHP 23 had abetted the deceased to commit suicide. Hence it is held that criminal offence of abetment is not proved against .
accused persons beyond reasonable doubt because there is no positive evidence of proximity of time between abetment and suicide in present case. See 1997 (4) Supreme Court page 214 titled Sangaralonia Sreenoo vs. State of A.P. See AIR 2011 SC page 239 titled M.Mohans vs. State.
12. Submission of learned Additional Advocate General appearing on behalf of State that prosecution has proved beyond reasonable doubt that accused persons have committed criminal offence under Section 498-A IPC is accepted for the reasons hereinafter mentioned. We have carefully perused the testimony of PW1 Chanda Singh. PW1 Chanda Singh has specifically stated in positive manner that deceased was harassed in her matrimonial house and was beaten in her matrimonial house by accused persons for bringing insufficient dowry. PW1 has also specifically stated in positive manner that accused persons used to address the deceased as daughter of 'kanjar' (Person leading illicit life).
PW1 has specifically stated in positive manner that above stated fact was directly narrated by deceased to him when deceased had visited her parental house. We are of the ::: Downloaded on - 15/04/2017 18:07:13 :::HCHP 24 opinion that uttering the word 'Kanjar' (Person leading illicit life) to a married woman ipso facto amounts to mental cruelty .
upon married woman. It is well settled law that cruelty is of two types i.e. mental cruelty and physical cruelty. By way of uttering the word 'Kanjar' (Person leading illicit life) to deceased the mental cruelty in matrimonial house upon deceased is proved on part of accused persons.
13. We have carefully perused the testimony of PW2 Veena Devi. PW2 Veena Devi who was Pardhan of Gram Panchayat has specifically stated in positive manner when she appeared in witness box that deceased had directly told her when deceased came to her parental house that her husband, her sister-in-law and others ill-treated her for bringing insufficient dowry and deceased had also directly narrated to PW2 Veena Devi Pardhan that deceased was beaten by accused persons in her matrimonial house. Mental cruelty upon deceased in her matrimonial house is proved beyond reasonable doubt as per testimony of PW2. We have carefully perused the testimony of PW4 Baldev Singh BDC member.
PW4 has specifically stated in positive manner that when deceased came to her parental house she told her father about cruelty and demand of insufficient dowry and thereafter ::: Downloaded on - 15/04/2017 18:07:13 :::HCHP 25 father of deceased directly told these facts to PW4. Testimony of PW4 is also trustworthy reliable and inspires confidence of .
Court. It was held in case 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. (See 1998 Cr.L.J. 554 titled Jagdish and others vs. State of Rajasthan and another) Court is of the opinion that uttering work 'kanjar' (Person leading in illicit relations) to a married woman in her matrimonial house amounts to mental cruelty as defined under Section 498-A IPC. It is well settled law that every woman has legal right to live in her matrimonial house with dignity and honour and any derogatory remarks to a married woman in her matrimonial house amounts to mental cruelty.
14. Another submission of learned Additional Advocate General appearing on behalf of State that criminal offence under Section 201 IPC is also proved beyond reasonable doubt against accused persons is rejected being denied of any force for reasons hereinafter mentioned.
Ingredients of Section 201 IPC are (1) That accused should have knowledge that an offence has been committed (2) ::: Downloaded on - 15/04/2017 18:07:13 :::HCHP 26 That thereafter accused persons have caused disappearance of evidence of commission of criminal offence. See AIR 1999 .
Supreme Court page 3435 titled Ram Saran Mahto vs. State of Bihar. In the present case two persons were sent to inform parents of deceased about death of deceased and thereafter about 4 p.m. deceased was cremated in presence of co-
villagers. There was no concealment of dead body on the part of accused person. All the co-villagers were allowed to see dead body in the house of accused persons. It is held that offence under Section 201 IPC is not proved on record beyond reasonable doubt.
15. Submission of learned defence Advocate appearing on behalf of accused persons that conduct of complainant himself renders the case of prosecution doubtful because incident took place on dated 25.7.2004 and information in police station was given on dated 30.7.2004 after a gape of sufficient time and on this ground appeal filed by State be dismissed is rejected being devoid of any force for the reasons hereinafter mentioned. In present case delay in lodging the FIR is not fatal to prosecution because there was mental shock to the father of deceased when deceased had died in her matrimonial house all of a sudden. PW1 has ::: Downloaded on - 15/04/2017 18:07:13 :::HCHP 27 specifically stated in positive manner that on dated 26.7.2004 he had gone to the house of accused and dead body of his .
daughter was not found and it was informed to him that deceased was cremated by accused persons. He has stated that thereafter on dated 27.7.2004 PW1 father of deceased had gone to police station Indora and thereafter officials of P.S. Indora informed him that case would be registered in police station Nurpur. Thereafter PW1 father of deceased went to P.S. Nurpur and criminal case was registered. We are of the opinion that delay in filing FIR has been satisfactorily explained by PW1 when he appeared in witness box. Hence it is held that delay in filing the FIR is not fatal to prosecution case.
16. Another submission of learned defence Advocate appearing on behalf of accused that there is material contradiction and improvement in testimonies of PW1 and PW4 and on this ground appeal filed by State be dismissed is rejected being devoid of any force for the reasons hereinafter mentioned. We have carefully perused testimonies of PW1 and PW4. Incident took place on 25.7.2004 and testimonies of prosecution witnesses were recorded on 6.10.2006, 10.10.2006, 11.10.2006, 12.10.2006, 12.11.2006, 21.11.2007, ::: Downloaded on - 15/04/2017 18:07:13 :::HCHP 28 22.11.2007, 22.1.2008 and 23.1.2008 after a gape of sufficient time. We are of the opinion that minor .
contradictions are bound to come in criminal case when testimonies of prosecution witnesses are recorded after a gape of sufficient time. In present case learned defence Advocate appearing on behalf of accused did not point out any material contradiction which goes to the root of case. It is also well settled law that concept of falsus in uno falsus in omnibus is not applicable in criminal cases. (See AIR 1980 SC 957 titled Bhee Ram vs. State of Haryana. See AIR 1971 SC 2505 titled Rai Singh vs. State of Haryana.)
17. Another submission of learned defence Advocate appearing on behalf of accused that deceased was residing separately from her in-laws and her in-laws have been falsely implicated in present case is rejected being devoid of any force. No suggestion has been given by accused persons to the prosecution witnesses when they appeared in witness box that deceased used to reside separately from her in-laws prior to her death. No reason has been assigned by accused persons as to why suggestion was not given to prosecution witnesses when they appeared in witness box that deceased was residing separately from her in-laws. There is no evidence ::: Downloaded on - 15/04/2017 18:07:13 :::HCHP 29 on record in order to prove that deceased was residing separately from her in-laws prior to her death. In view of .
above stated facts plea that deceased was residing separately from her in-laws is not tenable before High Court of H.P. for the first time.
18. Another submission of learned Advocate appearing on behalf of accused that Smt. Parvesh Kumar sister-in-law of deceased was married at a distant place and no role has been attributed by prosecution to her is also rejected being devoid of any force for the reasons hereinafter mentioned. PW1 Chanda Singh has specifically stated in positive manner that deceased had directly disclosed him the factum of cruelty on the part of accused persons when deceased came to her parental house. Even PW2 Veena Devi has specifically stated when she appeared in witness box that deceased had directly narrated to her when she came to her parental house that accused persons have ill-treated her for bringing insufficient dowry and PW2 has also stated that deceased had directly informed her the fact of taunting and beating the deceased in her matrimonial house. Testimonies of PW1 and PW2 are trustworthy reliable and inspire confidence of Court. There is no evidence on record in order ::: Downloaded on - 15/04/2017 18:07:13 :::HCHP 30 to prove that co-accused Parvesh Lata did not come to matrimonial house of deceased along with her husband at .
several intervals prior to death of deceased.
19. Another submission of learned defence Advocate appearing on behalf of accused that no offence has been committed by husband of deceased because husband of deceased was working at a distant place at Jammu and on this ground appeal filed by State be dismissed is rejected being devoid of any force for the reasons hereinafter mentioned. It is proved on record that deceased had committed suicide in her matrimonial house leaving behind her three minor children.
Court is of the opinion that no mother would commit suicide in her matrimonial house without any reasonable cause leaving her three minor children at the mercy of society. Factum of mental cruelty was informed by deceased during her life time to her father PW1 and also informed to PW2 Pardhan of G.P. Court is of the opinion that husband is under legal obligation to maintain his legally wedded wife in her matrimonial house properly. In present case it is proved on record that derogatory remarks 'kanjar' (Person who deals in illicit relations) were given to deceased in her matrimonial house. It is well settled law that offence under Section 498-A is a ::: Downloaded on - 15/04/2017 18:07:13 :::HCHP 31 continuing offence and criminal offence under Section 498-A is offence against society at large. Mental harassment by way of .
demand of dowry and by way of uttering derogatory words to a married woman in her matrimonial house is not permissible in advance civilized society. Criminal offence under Section 498-A IPC is punishable upto three years imprisonment and fine. As per Section 468 of Cr.P.C. 1973 cognizance of criminal offence can be taken within three years if punishment of criminal offence is exceeding one year but not exceeding three years. In present case there is no evidence on record in order to prove that husband of deceased and sister-in-law of deceased did not come to their parental house within three years prior to the death of deceased. No suggestion has been given to prosecution witnesses that co-accused Kulwant and co-accused Parvesh did not come to their parental house within three years prior to death of deceased. On contrary there is positive cogent and reliable evidence on record that deceased had personally told to PW1 when she came to her parental house within two month prior to her death about factum of cruelty committed by accused persons.
20. Another submission of learned Advocate appearing on behalf of accused that minor children of ::: Downloaded on - 15/04/2017 18:07:13 :::HCHP 32 deceased have not been examined by prosecution in present case and on this ground appeal filed by State be dismissed is .
rejected being devoid of any force for the reasons hereinafter mentioned. We are of the opinion that number of witnesses to prove the fact is not required as per Section 134 of Indian Evidence Act 1872. We are of the opinion that fact in criminal case can be proved even by testimony of a single witness. The facts of demand of dowry and facts of mental cruelty and fact of utterance of words 'kanjari' (Person who deals in illicit relations) are proved on record in present case as per testimonies of PW1, PW2 and PW4.
21. Another submission of learned Advocate appearing on behalf of accused that seller of cow is not examined in present case and on this ground appeal filed by State be dismissed is rejected being devoid of any force for the reasons hereinafter mentioned. In present case it is proved on record as per testimonies of PW1, PW2 and PW4 that father of deceased had provided cow to deceased so that deceased could provide milk to her minor children.
Testimonies of PW1, PW2 and Ext.P4 remain unrebutted on record. It is held that examination of seller of cow was not ::: Downloaded on - 15/04/2017 18:07:13 :::HCHP 33 mandatory in the presence of testimonies of PW1, PW2, and PW4.
.
22. Another submission of learned Advocate appearing on behalf of accused that PW1, PW2 and PW4 are interested witnesses and conviction under Section 498-A IPC could not be given to accused persons on their testimonies is rejected being devoid of any force for the reasons hereinafter mentioned. It is proved on record that mental cruelty upon the deceased was committed in four walls of matrimonial house. It is well settled law that generally married women used to narrate the factum of mental cruelty to her near relatives only. It is held that procurement of independent witness is impossible when mental cruelty is committed upon married woman inside the four walls of residential house. 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 simply on ground of absence of corroboration from independent witness.
23. Facts of case law cited by learned defence Advocate appearing on behalf of accused persons i.e. (2014)9 SCC 365 titled Ramaiah alias Rama vs. State of Karnataka ::: Downloaded on - 15/04/2017 18:07:13 :::HCHP 34 (2013)16 SCC 421 titled Bhola Ram vs. State of Punjab, 2012(1) Shim.LC 108 titled State of H.P. vs. Umardeen , 2012(2) Shim. LC 710 titled State of H.P. vs. Ani Kumar and others and facts of present .
case are entirely different. It is held that case law cited supra by learned defence Advocate are not applicable in facts and circumstances of present case and case law cited supra are distinguishable.
24. It is well settled law that conviction could be based on testimony of a single witness in the criminal case if testimony of single witness inspires confidence of Court. (See:
AIR 1973 SC 944 Jose Vs. The State of Kerla (Full Bench) It was held in case reported in AIR 1987 S.C. 1328 Dalbir Singh Vs. State of Punjab that there is no hard and fast rule which could be laid down for appreciation of evidence and it is a question of fact and each case has to be decided on the fact as they proved in a particular case.
25. In view of above stated facts and case law cited supra appeal is partly allowed. Acquittal of accused persons qua criminal offence punishable under Section 306 and 201 IPC are upheld. Acquittal of accused persons qua criminal offence punishable under Section 498-A read with Section 34 IPC is set aside and all accused persons are convicted qua ::: Downloaded on - 15/04/2017 18:07:13 :::HCHP 35 criminal offence punishable under Section 498-A read with Section 34 IPC. Judgment of learned trial Court is modified to .
this extent only. Now convicted persons be heard on quantum of sentence on 6.5.2015.
(Sanjay Karol), Judge April 08,2015 (ms).
r to (P.S. Rana)
Judge
Cr. Appeal No. 569 of 2008
QUANTUM OF SENTENCE
6.5.2015
Present:- Mr. Ashok Chaudhary, Additional Advocate General with Mr.V.S. Chauhan, Additional Advocate General, and Mr. J.S. Guleria, Assistant Advocate General, for the appellant.
Mr. Rajesh Mandhotra, Advocate with the convicted persons.
Convicted persons are in custody of HHC Nardev Singh No. 1142 P.S. Nurpur, C. Darpan Kumar No. 1064 P.P. Gangth, L.C. Rita Devi No. 617, P.S. Nurpur, L.C. Mumtaz No. 578 P.S. Jawali, ASI Ashok Kumar P.P. Gangth and ASI Sukhdev Raj P.S. Jawali.
::: Downloaded on - 15/04/2017 18:07:13 :::HCHP 3626. We have heard learned Advocate appearing on behalf of convicted persons and learned Additional Advocate .
General appearing on behalf of the State upon quantum of sentence.
27. Learned Advocate appearing on behalf of the convicted persons submitted before us that age of convicted Kaur Singh is 80 years, age of convicted Krishna Devi is 75 years, age of convicted Parvesh Lata is 50 years, age of convicted Kulwant Singh is 45 years and age of convicted Ravinder Singh is 40 years and they are first offenders and they have family to support and convicted persons namely Kaur Singh, Krishna Devi and Parvesh Lata are suffering from medical ailment and lenient view be adopted. On the contrary learned Additional Advocate General appearing on behalf of State submitted before us that offence under Section 498-A IPC is an offence against Society and deterrent punishment be given to convicted persons in order to maintain majesty of law.
28. We have considered the submissions of learned Additional Advocate General appearing for the State and learned defence counsel appearing on behalf of convicted persons carefully upon quantum of sentence.
::: Downloaded on - 15/04/2017 18:07:13 :::HCHP 3729. We are of the opinion that offences under Section 498-A IPC are increasing in the society day by day. We are of .
the opinion that it is not expedient in the ends of justice to release the convicted persons under Probation of Offenders Act. It was held in case reported in AIR 2015 SC 398 titled State of M.P. vs. Surendra Singh that sentence should commensurate with gravity of offence. Keeping in view the fact that convicted Kaur Singh is 80 years old, convicted Krishna is 75 years old, convicted Parvesh Lata is 50 years old and in view of the fact that these convicted persons are suffering from medical ailment and keeping in view the fact that all convicted are first offenders, we sentence the convicted persons as follow:-
Sr. Nature of Sentence imposed
No. Offence
1. Offence under Each convicted persons are sentenced to
Section undergo simple imprisonment for one
498-A IPC month twenty days and fine to the tune of
`10,000/- (Rupees ten thousand only) is
imposed upon each convicted person. In
default of payment of fine each convicted persons shall further undergo simple imprisonment for twelve days.
30. Period of custody during investigation, inquiry and trial will be set off. Certified copy of judgment and sentence will be supplied to convicted persons forthwith free of cost by ::: Downloaded on - 15/04/2017 18:07:13 :::HCHP 38 learned Registrar (Judicial). Case property if any will be confiscated to State of H.P. after the expiry of period of filing .
further legal proceedings before the competent Court of law.
The Registrar (Judicial) will prepare the warrant of commitment strictly in accordance with law. File of learned trial Court along with certified copy of judgment and sentence be transmitted forthwith. Appeal stands disposed of. All pending miscellaneous application(s) if any also stands disposed of.
r to (Sanjay Karol),
Judge
May 06, 2015 (P.S. Rana)
(ms). Judge
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