Himachal Pradesh High Court
State Of Himachal Pradesh vs Pawan Kumar And Others on 12 July, 2016
Author: Ajay Mohan Goel
Bench: Sanjay Karol, Ajay Mohan Goel
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Cr. Appeal No 286 of 2009.
Reserved on 27.6.2016.
Decided on: 12. 7.2016.
.
State of Himachal Pradesh.
....Appellant.
Versus
Pawan Kumar and others ... Respondents.
................................................................................................
of
Coram
The Hon'ble Mr. Justice Sanjay Karol, Judge.
The Hon'ble Mr. Justice Ajay Mohan Goel, Judge.
rt
Whether approved for reporting?1 Yes.
For the appellant. : Mr. Mr. Vikram Thakur, Dy. Advocate
General with Mr. J.S. Guleria, Assistant
Advocate General.
For the respondents . : Mr. Anoop Chitkara, Advocate with
Mr. Hoshiar Kaushal, Advocate.
Ajay Mohan Goel, J.
By way of present appeal, the State has challenged the judgment passed by the Court of learned Sessions Judge, Hamirpur in Sessions Trial No. 16 of 2008 dated 21.11.2008 vide which the learned Trial Court has acquitted the accused for commission of offences punishable under Sections 498-A and 306 of Indian Penal Code (in short 'IPC').
1Whether reporters of the local papers may be allowed to see the judgment?
::: Downloaded on - 15/04/2017 20:47:40 :::HCHP 22. In brief, the case of the prosecution was that a telephonic information was received from Medical Officer, Regional Hospital, .
Hamirpur on 24.4.2008 at 17.10 hours, which was duly registered vide Daily Diary Ext. PW6/A to the effect that Sushma Devi (hereinafter to be referred as 'deceased') wife of Pawan Kumar (in short 'accused') had been brought to hospital with burn injuries. The police was of requested to come to the hospital and take further action in accordance with law. Sub Inspector Guler Chand and HC Charanjit Singh went to rt the hospital where HC Charanjit Singh moved an application Ext.
PW12/B for getting the deceased medically examined and he sought opinion from the doctor as to whether she (deceased) was fit to make statement or not. Dr. Sunita Dalodha, PW12, examined deceased, vide MLC Ext. PW11/B and referred her to IGMC, Shimla vide discharge slip Ext.PW12/A. She also expressed her opinion that deceased was not fit to make any statement. Thereafter, Braham Dass, father of deceased came to hospital and made statement under Section 154 Cr.P.C., Ext. PW1/A, to the effect that his daughter Sushma Devi was married with accused Pawan Kumar in the year 2001 and after about one year when she visited her parental house she told them that her husband-Pawan Kumar, mother-in-law, Matti Devi, father-in-law, Nikka Ram, brother-in-law, Ajit Kumar and sister-in-law Kanta Devi ::: Downloaded on - 15/04/2017 20:47:40 :::HCHP 3 used to ill-treat her for not bringing sufficient dowry and also subjected her to cruelty. Braham Dass sent his daughter back to the .
matrimonial house after advising the in-laws that they should mend their behaviour. However, deceased continued complaining that there was no change in their behaviour, therefore, he took Pradhan, Balwant Singh, to the matrimonial house of deceased where Pradhan, Pritam of Chand was also present. The in-laws of deceased assured that they would not repeat such behaviour in future. However, their such rt behaviour continued and on 24.2.2008 at around 6:00 p.m., he came to know from Hans Raj on telephone that Sushma Devi had been brought to hospital at Hamirpur in burnt condition. He further stated that by the time he reached the hospital, deceased had been referred to Shimla. It was reported that accused persons had burnt his daughter.
3. On the basis of this statement, case was registered under Sections 498-A, 323 and 324 read with Section 34 IPC against the accused. During the course of investigation, ASI Subhash Chand took into possession copy of compromise deed Ext. PW1/B dated 5.1.2006, vide memo Ext. PW1/C. The burnt clothes of deceased were also taken into possession from her bed room.
4. In the meanwhile, Sushma Devi died on the way to Shimla. On the application of the investigating officer, post-mortem ::: Downloaded on - 15/04/2017 20:47:40 :::HCHP 4 of the dead body was conducted. The matter was thereafter investigated and the accused persons were arrested and challan was .
prepared against them for having committed offences punishable under Sections 498-A and 306 IPC. As a prima-facie case was found against the accused, accordingly they were charged for commission of offences punishable under Section 498-A and 306 IPC. The accused of pleaded not guilty and claimed to be tried.
5. In order to substantiate its case, prosecution, in all, rt examined 12 witnesses.
6. Father of deceased Braham Dass appeared as PW1 and stated that deceased (his daughter) was married to accused-Pawan Kumar in December, 2001. Relation between his daughter and her husband remained cordial for about one year and thereafter accused persons started torturing the deceased on demand of dowry and they demanded Rs. 2.00 lacs which allegedly was the expenditure incurred by them at the time of the marriage of accused. He also deposed that his daughter used to inform him telephonically about mental and physical harassment which was meted out to her by the accused. He also deposed that in December, 2005, deceased was beaten up and at that time he along with his brother, Hans Raj and sister-in-law Simro had gone to the matrimonial house of deceased and brought her to his ::: Downloaded on - 15/04/2017 20:47:40 :::HCHP 5 own house and also moved an application to the police. Police had called the accused persons. PW-1, his brother Hans Raj and Pradhan, .
Balwant along with his daughter went to the police station Hamirpur and Pradhan Pritam Chand was also present there from the side of accused. Deceased had sustained injuries on her face and accused persons admitted their fault in presence of all and the matter was of compromised. Deceased was sent to her matrimonial house. Accused had undertaken not to indulge in such behaviour again. However, as rt per PW1, they did not mend their way and thereafter as and when he went to their house he found that accused persons were abusing his daughter and him also. On 24.4.2008 at about 5:30 p.m., he received unfortunate news of his daughter having sustained burn injuries. He also stated that on 17.4.2008 there was a marriage in his relation at village, Anu and deceased had gone to attend the marriage, where he (PW1) was also present. Deceased complained to him there that she was apprehending danger to her life from accused persons. However, he pacified her where husband of deceased was also present. He also invited them to come to his house but they did not come. In his cross-
examination, he has stated that he did not disclose the factum of Rs.
2.00 lac demanded by accused persons to the police. He also admitted that he had not disclosed this fact to the police that whenever he ::: Downloaded on - 15/04/2017 20:47:40 :::HCHP 6 visited the house of accused persons they used to abuse him. He has also admitted that he had not disclosed to the police that on 17.4.2008 .
when his daughter met him in the marriage, she told him that she was apprehending danger to her life from the accused persons. He has clarified that he was puzzled at the time of death of his daughter.
Thereafter he stated that he did not tell anyone about the alleged of torture of his daughter except Pradhan Pritam Chand but Pradhan Pritam Chand did not visit the house of accused persons to advise rt them because he used to tell him (PW1) that accused persons also abused him.
7. PW2, Simro Devi is the aunt of deceased. She has corroborated the case of prosecution and has stated that whenever deceased used to visit her father's house, she used to say that accused used to taunt her for not bringing dowry. She also deposed that once deceased had come with severe injuries on her face and she told that her mother-in-law had caused injuries to her. She also told her that other accused persons had also given beatings to her. She has further deposed that subsequently the matter was compromised vide Ext.
PW1/B. She also deposed that once when deceased had come to her house on account of death of family member, at that time deceased disclosed to her that all accused persons used to beat her. In her cross-
::: Downloaded on - 15/04/2017 20:47:40 :::HCHP 7examination, she has stated that she did not inform the police about the visit of deceased at the time of death of family member. She also .
stated that she had not advised the accused persons against the said alleged treatment meted out by them to the deceased. She thereafter stated that she did not remember as to whether she told the police or not that accused used to demand Rs. 2.00 lacs from the deceased. She of was also confronted with her statement (Ext.DA) made to the police where it was not so recorded.
8. rt PW3, Leela Devi, aunt of deceased has also supported the case of prosecution and stated that accused persons used to physically torture the deceased on account of dowry.
9. PW4, Balwant Singh, stated that in the year 2001 he was Up-Pradhan of Gram Panchayat, Bhumpal. On 16.12.2005 PW1, Braham Dass, had come to his house and told him that his daughter was beaten up by her husband, father-in-law and mother-in-law. He advised PW1, Braham Dass, to report the matter with the police. On 4.1.2006, police called accused persons to the police station and he also went there. He further deposed that he had seen severe injuries on the face and eyes of the deceased. The in-laws and husband of deceased admitted their guilt in presence of all and assured that they would not indulge in such behaviour again. On this, a compromise ::: Downloaded on - 15/04/2017 20:47:40 :::HCHP 8 was reduced into writing and the same was signed by him, Pritam Chand Pradhan of accused side, deceased as well as by accused also.
.
Thereafter, deceased accompanied the accused persons to her house.
In his cross-examination, he has stated that he had told to the police in Ext.DB that deceased had sustained injuries on her face and over her eyes. However, when the said witness was confronted with the of document, it revealed that he had not made such statement before the police.
10. rt HC, Charanjit Singh, has deposed as PW5 to the effect that he had partly investigated the case and collected the MLC of deceased from hospital. He has also deposed that burnt clothes of deceased were taken into possession from her house by the investigating officer in his presence, vide memo Ext. PW5/A.
11. PW6, HC Vijay Parkash, has deposed with regard to Medical Officer Regional Hospital, Hamirpur having informed him on telephone that deceased was brought to hospital in burnt condition.
He has also deposed with regard to deposit of the case property.
12. PW7, Vijay Singh, has deposed that he deposited the case material handed over to him with FSL, Junga and after depositing the same, he handed over the original RC to MHC.
::: Downloaded on - 15/04/2017 20:47:40 :::HCHP 913. PW8, Rajinder Kumar, deposed that he conducted the search of the house of accused and took into possession one stove, one .
plastic canny containing one liter kerosene oil, one match box cover and other articles.
14. PW9, Inspector Anjni Jaswal, prepared final report and presented the same in the Court.
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15. PW10, Dr. Ashok Kaushal, had conducted the post-
mortem of deceased.
16. rt PW11, ASI, Subhash Chand, has stated that he remained as ASI in Police Station Sadar, Hamirpur and had conducted the investigation of this case. He has also deposed that he got conducted the post-mortem of the dead body of deceased and prepared the site plan and also recorded the statements of the witnesses. He deposed that the statements of the witnesses were recorded as per their versions.
17. PW12, Dr. Sunita Galodha, deposed that she was posted as Medical Officer in Regional Hospital, Hamirpur and on 24.4.2008 at about 5:30 p.m. deceased was brought by her husband and mother-
in-law after changing her clothes with the history of accidental stove burns. She further deposed that the police was accordingly informed.
The patient was restless with pain. Pulse was feeble and was not ::: Downloaded on - 15/04/2017 20:47:40 :::HCHP 10 countable. She also deposed that the patient was referred to IGMC, Shimla.
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18. These are the relevant witnesses whose testimonies are relevant for the purpose of adjudication of the present appeal.
19. On the basis of material produced on record by the prosecution, the learned Trial Court came to the conclusion that the of prosecution had not been able to prove the charges against the accused. Feeling aggrieved by the said judgment passed by the learned rt Trial Court, the present appeal has been filed by the State.
20. We have heard learned counsel for the parties and also gone through the records of the case as well as the judgment passed by the learned Trial Court.
21. Before proceeding any further, it is relevant to take note of the fact that here is a case which admittedly is of unnatural death and the death has taken place within 7 years of the marriage of the deceased. The accused have been charged under Sections 498-A and 306 read with Section 34 I.P.C. As per Section 498-A, whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine. As per this section, "cruelty" means any willful conduct which is of such ::: Downloaded on - 15/04/2017 20:47:40 :::HCHP 11 a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or .
physical) of the woman. Further "cruelty" also means harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any of person related to her to meet such demand.
22. It has come in the statement of PW1 father of the rt deceased that earlier also deceased was beaten up by accused persons and the matter was reported to the police where a compromise had taken place. The compromise has been placed on record Ext. PW1/B. A perusal of the said compromise demonstrates that the said compromise was entered into between the parties on the following terms:-
(a) Father-in-law, Nika Ram and mother-in-law of the deceased accept that they had ill-treated their daughter-in-law and had also physically abused her and they admit their fault. They undertake that hereinafter they will not indulge in verbal abuse or physical assault of their daughter-in-law today itself i.e. 6.1.2006. They are taking their daughter-in-law to their house along with them and they will keep their daughter-in-
law properly and in case some untoward incident takes place with her then they will responsible for the same.
::: Downloaded on - 15/04/2017 20:47:40 :::HCHP 12(b) Husband, Pawan Kumar, accepted that when the incident took place he was not in his house and that he also accepted that deceased was physically abused but he stated that .
hereinafter in future such mistake shall not be repeated.
(c) In-laws of the deceased stated that from the date of compromise they take the responsibility of the deceased and if anything untoward happened with her then they will responsible for the same.
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(d) Deceased agreed that she will remain at her matrimonial house and she will treat all with love and affection. rt
23. This agreement was arrived at between the parties on 6.1.2006. It has been signed by accused Nika Ram, Panwar Kumar, Braham Dass and Sushma Devi (deceased). A perusal of the contents of said compromise will demonstrate that there is no allegation of physical abuse against the husband. Further apparently there is no reference of any demand of dowry etc. in the terms of the settlement of the said agreement which was entered into between the parties. The terms on which the agreement was entered into, inter alia, were that the accused (in-laws of the deceased) shall treat her properly and will not verbally abuse her or physically ill-treat her. It was further undertaken by the accused that the deceased shall be taken to her ::: Downloaded on - 15/04/2017 20:47:40 :::HCHP 13 matrimonial house and she will be treated properly and in case any untoward incident happens then they will be responsible for the same.
.
24. This compromise is dated 6.1.2006. The deceased committed suicide on 24.4.2008. The prosecution has not placed any material on record to substantiate that the deceased was subjected to any kind of physical torture etc. or any demands of dowry were ever of made from her after the execution of the compromise. The prosecution has not associated any independent witness to substantiate the rt allegations that the deceased was physically abused and harassed by the accused.
25. Now in this background, when we peruse the deposition of the prosecution witnesses, the same will reveal that PW1, Braham Dass, father of the deceased has stated that after the marriage of his daughter, the relations between the husband and wife were cordial for one year and thereafter accused started torturing her and started demanding dowry from her. Demands were also made of Rs. 2.00 lacs, that is, the amount which had been incurred on the marriage of accused-Pawan Kumar with the deceased. He has also stated that on 17.4.2008 there was a marriage in their relations at Anu and deceased had also attended the marriage and told him that she apprehended ::: Downloaded on - 15/04/2017 20:47:40 :::HCHP 14 danger to her life from the accused persons. According to PW1, Braham Dass, deceased's husband was also present with her and he .
asked both of them to visit him on the next day but they did not come.
In his cross-examination he has categorically stated that he did not disclose the factum of Rs. 2.00 lacs being demanded by the accused persons to the police or to anyone else. He has also stated that he did of not disclose to the police that on 17.4.2008 his daughter met him in a marriage ceremony at Anu and stated that she had danger to her life rt from the accused persons. He has also stated that he had not disclosed the factum of his daughter being tortured by the accused to anyone except Pradhan, Pritam Chand. Incidentally, Pritam Chand has not been examined as a witness by the prosecution. Pritam Chand, Pradhan of the Gram Panchayat was also one of the witnesses to the compromise entered into in the month of January, 2006 between deceased and the accused persons. Further, a perusal of the contents of FIR, Ext.PW1/A, will demonstrate that there is no mention in the same about the alleged demand for an amount of Rs. 2.00 lacs or that on 17.4.2008 the deceased had met PW1 and expressed apprehension about danger to her life from the accused persons. Besides father of deceased, the prosecution has also examined Smt. Simro Devi (PW2) and Smt. Leela Devi (PW3) who are aunts of the deceased. Both these ::: Downloaded on - 15/04/2017 20:47:40 :::HCHP 15 witnesses have deposed in the Court that after her marriage, Sushma Devi (deceased) used to visit her parental house and she used to tell .
them that accused used to taunt her for not bringing dowry. In fact, PW2 has stated that once the deceased had come with severe injuries on her face to her house she told that her mother-in-law has caused injuries to her. Thereafter, the matter was compromised vide Ext.
of PW1/B and deceased was sent to her matrimonial house. PW3, Leela Devi, has stated that she had arranged the marriage between accused rt and the deceased and after marriage deceased told her that accused persons taunted her for not bringing dowry. As per her, she used to tell the sister of Pawan that father of the deceased was a poor person and her parents should not torture the deceased for dowry. She has also stated that once all accused persons gave beatings to deceased and she was having injury all over her face and the matter was reported with the police and the same was compromised into between the parties. A perusal of the statement made by these two witnesses in the Court and their statements recorded under Section 161 of Cr.P.C. make one thing very apparent that they have not referred to any particular incident of cruelty meted out to the deceased by the accused after the date of compromise i.e. after 1.6.2006 uptill the date of her death. The contention of PW1 that on 17.4.2008 deceased had expressed ::: Downloaded on - 15/04/2017 20:47:40 :::HCHP 16 apprehension about danger to her life from the accused has also not been corroborated by any other witness. All these three witnesses are .
closely related to the deceased and they are interested witnesses.
Therefore, their statements have to be scrutinized very-very minutely in order to establish as to whether the same are trustworthy and whether the Court should rely upon the said testimonies to convict the of accused persons keeping in view the fact that there is no mention in the FIR about the alleged demand of Rs. 2.00 lacs by the accused form rt the deceased and about deceased expressing her apprehension of danger to her life from the accused on 17.4.2008 to PW1, Braham Das. It is apparent that said witness has made improvements in his testimony when he has entered the witness box and these contradictions in the contents of FIR and the statement made by PW1 in the Court have not been satisfactorily explained by the prosecution.
26. The prosecution has also examined Balwant Singh Up Pradhan, Gram Panchayat, Bhumpal at the relevant time as PW4. In his deposition, he has stated in the Court that on 16.12.2005 PW1 had come to his house and informed him that his daughter was beaten up by the accused. He has further stated that he advised PW1 to report the matter with the police. On 4.1.2006 police called the parties to the police station and he also went there. He saw severe injuries on the ::: Downloaded on - 15/04/2017 20:47:40 :::HCHP 17 face and on the eyes of the deceased. He further deposed that the accused admitted their guilt in the presence of all that they would not .
indulge in such behaviour again. Thereafter, the matter was compromised between the parties and the compromise was signed by him and Pritam Chand. A perusal of his statement recorded under Section 161 Cr.P.C. demonstrates that it is not recorded in the said of statement that he saw injuries on the face and eyes of the deceased.
This witness has been confronted with his statement recorded under rt Section 161 Cr.P.C. Besides this, this witness has also not deposed that after the date of compromise, the family of the deceased ever made complaint to the effect that the deceased was still being harassed by the accused. The prosecution has also not got recorded the testimony of any independent witness from the neighborhood of the deceased from where it could be proved that the deceased was subjected to any physical abuse by the accused before her unfortunate death.
27. The Hon'ble Supreme Court has held in Madivallappa V. Marabad and others Vs. State of Karnataka, (2014) 12 Supreme Court Cases 448, that in a case where no evidence is adduced to prove any particular act of cruelty or harassment to which the deceased was subjected to and where no complaint was made to the ::: Downloaded on - 15/04/2017 20:47:40 :::HCHP 18 police about any such assault or harassment before the death of the deceased, the conclusion arrived at by the Trial Court that the .
prosecution story was not established beyond reasonable doubt was the correct view.
28. It has been held by the Hon'ble Supreme Court in Sangara Bonia Sreen Vs. State of Andhra Pradesh, 1997 (4) of Supremet, that the basic ingredients of offence under Section 306 are
(a) suicidal death and (b) abetment thereof. In our considered view, in rt order to attract the ingredients of abetment the intention of the accused to aid or instigate or abet the deceased to commit suicide is necessary.
29. It is a unique legal phenomenon in the Indian Penal Code that the only act, the attempt of which alone will become an offence, is suicide. The person who attempts to commit suicide is guilty of the offence under Section 309 IPC, whereas the person who committed suicide cannot be reached at all. Section 306 renders the person who abets the commission of suicide punishable for which the condition precedent is that, suicide should necessarily have been committed.
Thus, the crux of the offence under Section 306 itself is abetment. In other words, if there is no abetment there is no question, the offence under Section 306 comes into play.
::: Downloaded on - 15/04/2017 20:47:40 :::HCHP 1930. Hereinafter, we shall apply these principles to the facts of .
the present case. A close scrutiny of the statements of the prosecution witnesses will demonstrate that none of them have mentioned any explicit act on account of the accused which can be termed to be an act of abetment on their behalf which led deceased Sushma Devi to of commit suicide. On the basis of the statements of the prosecution witnesses who were also interested witnesses, it cannot be said that rt the prosecution was successful in demonstrating and proving that the accused had committed any act which could be termed to be an act of abetment towards the commission of suicide by deceased Sushma Devi.
31. In order to substantiate the charge under Section 306 I.P.C., it has to be established that the death by commission of suicide was desired object of the abettors and with that in view they must have instigated, goaded, urged or encouraged the victim in commission of suicide. The instigation may be by provoking or inciting the person to commit suicide and this instigation may be gathered by positives acts done by the abettors or by omission in the doing of a thing. Thus, the acts or omission committed by the abettors immediately before the commission of suicide are vital. In the present ::: Downloaded on - 15/04/2017 20:47:40 :::HCHP 20 case, we are afraid that the prosecution was not able to substantiate any of the above ingredients. The prosecution could not prove any act .
of provocation or incitement or omission or commission on the part of the accused, vide which they had instigated the deceased to commit suicide.
32. The prosecution has not been able to establish any of intention of the accused to aid or instigate or abet the deceased to commit suicide. Therefore, it cannot be said that the judgment passed rt by the learned Trial Court whereby the accused have been acquitted is either perverse or the acquittal of the accused by the learned Trial Court has amounted to travesty of justice.
33. Thus, we conclude by holding that the prosecution has failed to establish beyond reasonable doubt that the accused were guilty of the offences alleged against them. We have gone through the judgment passed by the learned Trial Court at length. The learned Trial Court after due deliberation and due application of mind has come to the conclusion that the prosecution could not bring home the guilt against the accused persons beyond reasonable doubt. We find no reason to disagree with the said conclusion arrived at by the learned Trial Court. According to us also, the accused persons are entitled to the benefit of doubt as the prosecution has failed to prove ::: Downloaded on - 15/04/2017 20:47:40 :::HCHP 21 beyond reasonable doubt the guilt of the accused. Therefore, we uphold the findings recorded by the learned Trial Court and the appeal .
is dismissed being without any merit. Bail bonds, if any, furnished by the accused are discharged.
(Sanjay Karol) Judge of (Ajay Mohan Goel) Judge 12th July, 2016.
(Guleria)rt ::: Downloaded on - 15/04/2017 20:47:40 :::HCHP