IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA Criminal Appeal No. 313 of 2000 Reserved on : 27th November, 2007 Date of Decision: 27th December,2007 Sohan Lal Appellant Versus State of Himachal Pradesh Respondent Coram The Hon’ble Mr. Justice Sanjay Karol,J. Whether approved for reporting1? Yes. For the appellant: Mr.Rakesh Jaswal, Advocate. For the respondent: Mr.Varinder Verma, Addl. Advocate General. Sanjay Karol, J. The present appeal arises out of judgment dated 20th May, 2000 passed by Sessions Judge, Bilaspur, H.P. in sessions trial No. 28 of 1996 titled as State of H.P. vs. Sohan Lal and others, acquitting three accused persons of the charged offence and convicting the fourth, accused No.1 Sohan Lal for an offence under Section 498-A and 306, IPC and sentencing him to undergo imprisonment for a period of one year with fine of Rs.500/- and in default thereof to further undergo imprisonment for a period of 3 months for an offence under Section 498-A, IPC and for a period of five years with fine of Rs.1000/- and in default thereof to Whether the reporters of Local Papers are allowed to see the Judgment? 2 further undergo imprisonment for a period of six months for an offence under Section 306, IPC. As per the case of the prosecution, deceased Smt. Krishani Devi was married to accused Sohan Lal and four children were born out of the wedlock. Accused persons Smt. Manbhari Devi, mother-in-law (accused No.2), Vidya Sagar and Kashmiri Lal, brothers-in-law (accused Nos. 3 & 4, respectively) and Sohan Lal, husband (accused No.1) maltreated the deceased Smt. Krishani Devi and did not provide clothes and meals and physically beat her. Some time before her death deceased visited her paternal home and told her mother about the harassment being meted out by the accused persons. Smt. Krishani Devi informed her mother about the beatings given to her by the accused persons but she was helpless. Sh. Bhagat Ram, brother-in-law of the deceased had also asked the accused persons not to maltreat her, but, despite this the accused continued maltreating her. On 13.4.1995 Jai Singh, brother of the deceased visited the deceased when he found her weeping and was told that all the accused persons had given her beatings. On 14.4.1995 Bhagat Ram (PW-1) and Smt. Servo Devi (PW-4) were informed that deceased had stomachache. Shri Bhagat Ram upon reaching the house of deceased found her dead. On 14.4.1995, Smt. Krishani Devi committed suicide. As such, the accused persons had caused cruelty to Smt. Krishanai Devi and they had abetted the commission of suicide. Thus, the accused persons committed the offence punishable under Section 498-A and 306, IPC. Statement of PW-1 (Ext.PW-1/A) was recorded by the police and based upon the same FIR No. 25/95 dated 14.4.1995 (Ext.PW- 3 10/A) was recorded with Police Station Bharari, District Bilaspur, under Sections 498-A, 306 read with Section 34, IPC. Two plastic tubes (Ext.P3 and Ext.P4) containing 16 tablets of Sulphas (Phosphorus), which was poison was taken into possession by the police vide seizure memo (Ext.PW-3/C) from the house of the accused in the presence of Bansi Ram (PW-3). Inquest reports (Ext.PW-10/B) and Ext.PW-10/C) were prepared and post-mortem (Ext.P-6) was carried out on the dead body of the deceased by Dr.D.P.Handa and Dr.D.R.Rawat. The report of Chemical Examiner (Ext.P-7) was obtained by sending viscera for chemical examination. The medical evidence indicated that accused had died due to aluminum phosphide poisoning. With the completion of investigation, challan was presented in the Court for trial. All of the accused persons were charged for an offence under Section 498-A, 306 read with Section 34, IPC to which they pleaded not guilty and claimed trial. In order to prove its case, the prosecution examined 10 witnesses and the statement of accused under Section 313, Cr.P.C. was also recorded. The accused took the defence that Shri Bhagat Ram (PW-1) had not returned the ornaments belonging to the deceased, therefore, she committed suicide which fact had been disclosed by her to her brother Jai Singh. Accused also examined four witnesses in their defence. The Court below found accused No.1 Sohan Lal, husband of the deceased guilty of commission of an offence under Sections 498-A and 306 IPC but, however, with regard to other accused persons no evidence was found and they were acquitted of the charged offence. I have heard learned counsel and perused the record. 4 The learned counsel for the appellant has submitted that in view of acquittal of the co-accused the case of the prosecution itself stands falsified and the appellant also ought to have been acquitted of the charged offence; equal weightage was required to be given to the version of the defence witnesses and from the statement of DW-2 Smt. Kiran Devi, daughter of deceased, it is amply clear that the case made out by the prosecution is false. Learned counsel for the respondent has supported the judgment for the reasons set out therein. Ext.P-6 is the post-mortem report dated 15.4.1995 and Ext.P-7 is the report of Chemical Examiner. From these documents, it is evident that the deceased, aged 36 years, died of “respiratory failure due to aluminum phosphide poisoning”. Out of 10 prosecution witnesses Bhagat Ram (PW-1) is the brother-in-law of the deceased, Smt. Sarbo Devi (PW-4) is the mother of the deceased and Shri Jai Kishan (PW-5) is the brother of the deceased and Bhagwan Dass (PW-2) is the resident of the village of PW-4. Both Shri Bansi Ram (PW-3) and Smt. Ajudhaya Devi (PW-6) are the residents of the village of accused and PW-6 is an immediate neighbour of accused No.1. The other witnesses ASI Prem Lal (PW-7), Pratap Singh (PW-8), Constable Yashpal (PW-9) and Inspector Krishan Chand (PW-10) are police officials, who have proved the case of the prosecution. As per the version of Shri Bhagat Ram (PW-1), prior to her marriage, deceased had stayed with him for 5-6 years and he had solemnized her marriage and borne all expenses for the same. According to him, accused persons, particularly, Sohan Lal started harassing the 5 deceased alleging that she was not working at the house. Prior to her death deceased had visited her paternal house and told her mother that accused persons were harassing her and not providing her clothes and meals. He met accused Kashmiri Lal and requested him not to beat Smt. Krishani Devi. He even requested Bansi Ram, President of Gram Panchayat, to intervene and ask the accused persons not to physically beat the deceased. Shri Bansi Lal, however, expressed her inability as the accused persons refused to even listen to him. On being informed that the deceased was having stomachache, on the asking of PW-4 he visited the house of the accused where he found the dead body of the deceased lying in the house. He got his statement (Ext.PW-1/A) recorded with the police. The police searched and recovered two tubes containing tablets of poison. In the cross-examination, he has clearly stated that deceased was having good health. He has denied the suggestion that deceased had handed over his entire jewellery to him for safe custody. He has further denied the suggestion that because he did not return the jewellery she committed suicide. He has denied the suggestion that deceased was hot tampered and used to beat her children. As per the version of Bhagwan Dass (PW-2) accused Sohan Lal was not having good terms with the deceased from the beginning of their marriage and the deceased had told him that she was not getting proper clothes and meals from her husband and other family members. About 5-6 years prior to her death, she had told him that accused persons including Sohan Lal were not tolerating her. He visited the house of Sohan Lal and advised him to live peacefully keeping in view the interest of their children. Deceased and her husband Sohan Lal 6 lived peacefully for some time thereafter and later on she died due to poison. The said version goes unrebutted in the cross-examination. In cross-examination, however, he has denied that the accused was giving proper meals and clothes to the deceased or that whenever she visited her parents house she wore good clothes and jewellery. Bansi Ram (PW-3) President of Gram Panchayat, Gatwar, at the relevant time, was declared hostile and cross-examined by the Public Prosecutor. In his cross-examination he has admitted that accused persons are from his village. He could not state whether the accused persons were not giving proper meals and clothes to the deceased. He was confronted with his statement Ext.PW-3/A, wherein it was so recorded that all the accused persons were quarrelling with the deceased and that on 12.4.1995 he had come to know through the coolies working in the house of the accused that the accused was harassing the deceased and were not providing good meals. This witness has admitted the fact that he was informed by the accused that the deceased had taken poison and that he had visited the house of accused Sohan Lal and lodged the report Mark ‘X’. The police had reached the house of the accused and had recovered two tubes of phosphorous tables, which were taken into possession vide memo Ext.PW-3/C. The other articles were also taken into possession vide memos Ext.PW-3/D and Ext.PW-3/E. He has denied that Bhagat Ram had ever reported the matter to him that the accused persons were harassing deceased Smt. Krishani Devi. This witness belongs to the village of the accused and has a reason to depose in this favour. Even he does not state with certainty that the accused were providing with proper food and clothes to the deceased. 7 He has specifically not denied that the accused were not giving proper meals and clothes to the deceased. Smt. Servo Devi (PW-4) mother of deceased has deposed that during the life time of the father of accused Sohan Lal, the deceased was kept nicely but thereafter accused Sohan Lal started beating and harassing her daughter. Version of PW-1 stands corroborated by her that one or two months prior to her death deceased had visited her and told her that she was being harassed and beaten by the accused persons on the ground that accused was not working. The accused were not providing the deceased with proper clothes, meals and some times she was kept out of the house. She has further deposed that she had confronted Sohan Lal and asked him not to harass and beat her daughter. She had disclosed this fact to PW-1. On 14.4.1995 relative of accused had come to her house to inform her that deceased was having stomachache and had asked her to accompany him. She had sent for PW-1 to ascertain the factual position. In her cross-examination she has denied that deceased used to visit her in proper dress. She had denied the suggestion that accused were not providing the deceased with proper meals. She has explained that she was restrained by her daughter, therefore, she did not report the matter to the police. She has denied the suggestion that accused persons were not giving beatings or harassing the deceased. As per the version of Jai Kishan (PW-5), brother of the deceased, on 13.4.1995 he had visited the house of the accused Sohan Lal. On seeing him all the accused persons, except Sohan Lal, left the spot and deceased while weeping told him that in the night, under the influence of liquor, Sohan Lal had given beatings to her and had also 8 broken her bangles. He has further categorically stated Sohan Lal used to occasionally beat his sister and that he had advised him to improve his behaviour. On 14.4.1995 he was informed by the police that his sister had died after having consumed poison. The deceased took poison due to harassment and beatings given by the accused persons. In the cross- examination he has denied the suggestion that during his visit to the house of the accused he had been informed by his sister that if her ornaments were not returned by PW-1 she would not allow her family members to celebrate Basakhi. He has explained that his sister prevented him from lodging any report against the accused. From the deposition of PW-1, PW-2 and PW-3, it is evident that their testimony is clear, cogent, consistent and these witnesses are reliable and trustworthy. Their statement is cogent and natural. The version of PW-4 is duly corroborated by PW-1 and PW-5. From the depositions, it is clear that accused Sohan Lal used to harass and give beatings to the deceased. The deceased had narrated the incidents to PW-2, PW-4 and PW-5, who in turn had requested accused Sohan Lal to improve his behaviour and not to give beatings to the deceased. In spite of the same, accused did not improve his conduct and behaviour and continued to mal-treat her. The presence of the accused at the site of incident is not disputed, which is quite evident from the line of cross- examination of the prosecution witnesses. It is also admitted by the accused that PW-5 had visited the house of accused Sohan Lal and had met him and the deceased. It is not the case of the accused that the said witnesses have deposed falsely due to any animosity or any ill-will which they were 9 harbouring against the accused persons. In fact the version of PW-4 that two months prior to her death, deceased had visited her house and narrated the incident of beatings given by the accused has not been questioned by the accused in the cross-examination. Smt. Ajudhaya Devi (PW-6) is the neighbour of the accused Sohan Lal. Her house is at a distance of 200 ft. from the house of accused Sohan Lal. She has categorically stated that accused persons were frequently quarrelling with the deceased and during March, 1995 she had heard the cries of deceased during night hours. However, she could not specify as to who had beaten her as she did not visit the house of the accused on that day. She has further stated that during the night of 13.4.1995 she had seen the light in the house of the accused and heard voices. Her testimony goes unrebutted and this witness has not been cross-examined on this point. In cross-examination she has further clarified that during March, 1995 she had heard cries of the deceased during night as she was weeping. This witness is the neighbour of the accused and there is no reason for her to have falsely deposed against the accused. It is not the case of the accused that she was harbouring any animosity against him. In fact her testimony goes unrebutted as she has not been cross-examined with respect to the incident of March, 1995 and 13.4.1995. Her statement is clear, cogent and reliable and there is nothing on record which would impeach her credibility and make her statement doubtful. ASI Prem Lal (PW-7), HC Pratap Singh (PW-8), C. Yashpal (PW-9) are police officials who have proved the FSL report. 10 Inspector Krishan Chand (PW-10) has proved the recovery of the tubes (bottles) containing tablets Ext.P-3 and P-4, FIR Ext.PW- 10/A, statement of PW-1 recorded under Section 154 Cr.P.C. (Ext.PW- 1/A) and also the fact that he had completed the investigation. In his cross-examination he has clarified that with reference to the ornaments of the deceased he had also examined PW-1. In cross-examination he has deposed that he had interrogated Rakesh (DW-4), nephew of accused Sohan Lal, Kiran and Sandeep (daughter and son of accused Sohan Lal), Satya Devi wife of Rup Lal, with regard to death of the deceased. According to him, even though these persons had denied the fact that any quarrel took place in their presence, but however, he was informed that Sohan Lal used to abuse the deceased. During interrogation, Satya Devi had informed him that deceased had wanted to go to her mother’s house alongwith PW-5, who had in fact told her that he was going to Shimla and would take her on his way back from there. During interrogation, he had opened two trunks lying in the room with keys Ext.P-1 and P-2 in which he found clothes belonging to the deceased to be in good condition. From the statement of this witness, it is clear that tubes containing phosphorous were recovered from the house of the accused and Sohan Lal used to oftenly abuse the deceased. The accused has examined four witnesses. Satya Devi (DW-1) wife of Rup Lal, brother of the accused, Kiran Devi (DW-2) daughter of deceased and accused Sohan Lal, Shyam Lal (DW-3) resident of village of the accused and Rakesh Kumar (DW-4) is the nephew of the accused. 11 Satya Devi (DW-1) was cited as a prosecution witness but was given up as having been won over by the accused persons which is so recorded in the proceeding dated 21.5.1999. She has stated that PW-5 had visited the house of the deceased and had informed him to convey the message to PW-1 to return her jewellery and in case he failed to do so she would not allow them to celebrate the festival of Basakhi. In cross- examination she has denied that Sohan Lal had given beatings to deceased on 13.4.1995 or that the deceased had informed PW-5 about the beatings given by Sohan Lal to the deceased. She has admitted that all the accused persons are related to her. She is closely related to accused and is an interested witness. Her testimony, therefore, needs to be examined with circumspection, particularly, when she was won over by the accused persons. Her statement does not inspire much confidence as in her cross-examination, in a very casual manner, she has deposed that she did not know that the deceased had died a day after PW-5 had met her in the house of deceased. The deceased had expired on 14.4.1995 and she, being a family member, must have known about the death. As per the version of DW-2 the accused never mal-treated her mother and her father used to give her money every month. Her mother was of serious nature and used to give beatings and before her death had given beatings to her brother Aju on 12.4.1995. In cross- examination she has clearly admitted that after the death of her mother she had never visited the house of her maternal uncle and has been residing with her father since then. 12 This witness was 12 years of age at the time of incident. She has been living with her father and is, therefore, obviously under his influence. Therefore, it is not expected of her to come out with true version and state complete and correct facts. Her statement is partly reproduced as under:- “The accused persons belonged to my family and they had never maltreated Krishani nor had deprived her of food and clothes. My father had been residing separately for the last about 8 years from his brothers and since then till her death my mother used to be paid by my father his income every month.” It is to be noticed that the case was registered against four family members. The offence is alleged to have taken place in a rural area where normally children are not conversant with the financial terms and dealings between the adult members of the family. This witness appears to have been tutored to save the other family members. From her statement, it is clear that with regard to maltreatment she has referred to the accused persons in general and specifically not stated anything with regard to her father. In natural course she would have specifically mentioned about her father not having mal-treated her mother. Further she has not stated anything with regard to her mother’s ornaments, which as per the accused was the main cause of her having committed suicide. If ornaments was such a major and important issue with her mother she would have definitely come to know about the same and deposed accordingly, particularly when she has stated about the monthly payments 13 being given by her father to her mother. Therefore, her testimony cannot be believed and relied upon in favour of the accused. Similarly depositions of DW-3 and DW-4 are of not much significance. DW-3 has stated that he was working as a mason in the house of the accused, but, however, he used to leave after 5 pm. He could not state with certainty as to whether Sohan Lal used to maltreat his wife after 5 p.m. DW-4 is an interested witness and the nephew of accused Sohan Lal. His testimony is to the effect that 3 days prior to the occurrence of the incident he had to stay with Sohan Lal who did not maltreat Krishani Devi in his presence. He has categorically stated that in his presence Sohan Lal did not maltreat Krishani Devi but his statement is not to the effect that during his stay he did not leave the house of Sohan Lal at all. For the aforesaid reasons, it cannot be said that the witnesses examined by the accused are reliable and trustworthy or prove the innocence of the accused rendering the prosecution version to be false and incorrect. Smt. Ajyodhya Devi (PW-6) has deposed that prior to the death of the deceased in the night she had seen the light in the house of the appellant throughout the night and also heard voices. The testimony of this witness goes unrebutted and is otherwise cogent, reliable and trustworthy. It is not the case of the appellant that the witnesses were deposing falsely as they were harbouring any animosity against him. Further PW-10 has categorically stated that he had inquired about the incident from Shri Sandeep son of the appellant. Just as the appellant 14 had examined his daughter, he could have also examined Sandeep to elicit the true and correct facts. In Gurbachan Singh Vs. Satpal Singh and others, (1990) 1 Supreme Court Cases 445, the court has held as under: “4. Criminal charges must be brought home and proved beyond all reasonable doubt. While civil case may be proved by mere preponderance of evidence, in criminal cases the prosecution must prove the charge beyond reasonable doubt. See Mancini V. Director of Public Prosecutions, Woolmington V. Director of Public Prosecutions. It is true even today, as much as it was before. There must not be any ‘reasonable doubt’ about the guilt of the accused in respect of the particular offence charged. The courts must strictly be satisfied that no innocent person, innocent in the sense of not being guilty of the offence of which he is charged, is convicted, even at the risk of letting off some guilty persons. Even after the introduction of Section 498-A of the IPC and Section 113- A of the Indian Evidence Act, the proof must be beyond any shadow of reasonable doubt. There is a higher standard of proof in criminal cases than in civil cases, but there is no absolute standard in either of the cases. See the observations of Lord Denning in Bater V. Bater but the doubt must be of a reasonable man. The standard adopted must be the standard adopted by a prudent man which, of course, may vary from case to case, circumstances to circumstances. Exaggerated devotion to the rule of benefit of doubt must not nurture fanciful doubts or lingering suspicions and thereby destroy social defence. Justice cannot be made sterile on the plea that it is better to let hundred guilty escapes than punish an innocent. Letting guilty escape is not doing justice, according to law. 5. The conscience of the court can never be bound by any rule but that is coming itself dictates the consciousness and prudent exercise of the judgment. Reasonable doubt is simply that degree of doubt which would permit a reasonable and just man to come to 15 a conclusion. Reasonableness of the doubt must be commensurate with the