HIGH COURT OF HIMACHAL PRADESH AT SHIMLA Cr.A. No. 10 of 2000 Reserved on: 8.4.2008 Decided on: 1.5.2008. Karam Singh ………Appellant. Versus State of Himachal Pradesh ………Respondent. Coram: The Hon’ble Mr.Justice V.K. Ahuja, Judge. Whether approved for reporting? Yes. For the appellant: Mr.M.S. Chandel, Senior Advocate, with Mr.Rakesh Jaswal, Advocate. For the respondent: Mr.J.S. Guleria, Law Officer. V.K. Ahuja, J: This is an appeal filed by the appellant against the judgment of the court of learned Sessions Judge, Bilaspur, dated 29.12.1999, vide which the appellant was held guilty under Section 306 IPC and was sentenced to undergo rigorous imprisonment for a period of 5 years and to pay a fine of Rs.2,000. In default of payment of fine, the appellant was to undergo rigorous imprisonment for a further period of six months. Briefly stated that facts of the case are that on 12.10.1994 at about 11.35 a.m., a statement was made by Om Prakash under Section 154 Cr.P.C. to _______ 1.Whether reporters of Local papers may be allowed to see the judgment? Yes. - 2 - the police. He alleged therein that his youngest daughter Sunita Devi, aged about 22 years, was married to the appellant four years ago. He alleged that two children were born from this wedlock, who died and in the marriage he had given dowry articles according to his capacity. He stated that when his daughter came back to his house after marriage, she used to disclose that her Jethani Indira Devi, husband of Indira Devi and her husband Karam Singh used to give her beatings and abuses and he sent back his daughter after advising her. He further alleged that 7-8 months ago, his daughter Sunita Devi came to his house and told that she had been given beatings and after 6-7 days his son-in-law accompanied by one Hari Ram came, begged pardon and he sent back his daughter on the assurance of Hari Ram. He further alleged that at that time she had demanded Rs.15,000/- which were demanded by the appellant but he refused to pay the money. After some days, Sunita Devi had come to his house. The appellant sent a message that she should be sent back, failing which, she should remain there and on this he sent his daughter with her husband. On the previous day, he learnt from a telephonic message that his daughter was ill and when he went to the District Hospital, Bilaspur, he learnt that his daughter had taken some poisonous substance and had died. He alleged that his daughter had taken poison due to harassment caused by the appellant and two other accused persons. On this report, a case was registered and after investigation, the challan was filed as against the appellant and two other persons, namely, Jethani of the deceased Sunita Devi and her Jethani’s husband, who were tried by the learned trial Court under Section 304-B and 306 IPC, read with Section 34 IPC, but the appellant was acquitted of the charge under Section 304-B IPC, while the other - 3 - two accused persons were acquitted of the charges under both the Sections. Being aggrieved by the order of conviction under Section 306 IPC, the appellant has filed the present appeal. I have heard the learned counsel for the parties and have gone through the record of the case. The learned counsel for the appellant, during the course of arguments, had submitted that the guilt of the appellant had not been established under Section 306 IPC and there are material contractions or infirmities in the prosecution case and, therefore, the learned trial Court had come to a wrong conclusion in holding the appellant guilty under Section 306 IPC, which findings are liable to be reversed. On the other hand, the learned Law Officer for the respondent had supported the impugned judgment for the reasons recorded therein. The specific pleas raised by the learned counsel for the appellant during arguments pointing out the infirmities in the prosecution case shall be discussed below at the time of referring to the evidence produced by the prosecution. Coming to the evidence, a perusal of the record shows that the statement of four witnesses recorded by the prosecution can be said to be most material. The first material witness can be said to be PW-1 Om Parkash, father of the deceased, who had lodged the report with the police on the next day of the death of the deceased. A perusal of his statement shows that he had referred to the first occurrence that took place within one or two months of the marriage of his daughter when the appellant started humiliating and harassing his daughter on small maters. He further stated that the deceased came 8 months prior to her death in torn clothes and she told him that she was beaten - 4 - by the accused persons. Then the appellant Karam Singh came with Hari Ram, who had arranged the marriage, and took the responsibility of proper maintenance of his daughter and she was taken away by accused Karam Singh. He also stated that he had called one person, namely, Baldev Singh at the time of meeting. The next occurrence reported by him, which took place 3-1/2 months prior to her death, was that the deceased came to his house and asked for Rs.15,000/- which was required for the purchase of Thresher, as demanded by her husband. He had not paid the money but promised that he would pay lateron and further stated that then he received a message about the admission of his daughter in the Hospital. In further cross examination, he stated that lateron he had come to know that the appellant and his Bhabhi Indira were having illicit relations. In cross examination he has clearly stated that he does not remember the date and month of the marriage of his daughter and he cannot say if she was married on 11th or 10th October, 1990. In view of the statement of the complainant that he does not know even the date of the marriage of his daughter, which took place only four years ago, it cannot be insisted upon that the complainant must have told the exact dates when his daughter visited him and made the complaints. The sum total of the statement made by this witness has to be considered as to whether it inspires confidence or not and whether it has been corroborated by the other witnesses or not. The second material witness can be said to be PW-2 Smt.Ghambri Devi, mother of the deceased and wife of PW-2 Om Parkash, who also stated that 8 months prior to her death, the deceased had come to their house that she was being harassed and humiliated by the accused persons. She later told that they - 5 - were demanding Rs.15,000/-. She called Hari Ram, who had taken the guarantee for the safety of her daughter and then she sent her daughter with the appellant. She also narrated about the next incident which took place 1-1/2 months prior to her death when she told that she was being harassed by the accused persons and was also being beaten as the accused Karam Singh and Indira Devi were having illicit relations and were not tolerating her. She admitted that she had not disclosed about the relations of Karam Singh and Indira to any person including her husband till the death of her daughter. She admitted that the deceased gave birth to two children who were born in the house of the accused and both of them had died. She told that she does not know the month and date of birth or death of the children of her daughter. She stated in cross examination that she had disclosed about the beatings, harassment and demand of money to Hari Ram and she had sent back her daughter with Karam Singh on the undertaking given by Hari Ram. She admitted that the accused had not made any demand for money personally but that is no ground to hold that no such demand was made by the accused person. This fact was stated by the parents of the deceased to whom the fact was told by the deceased herself. The next witness is PW-4 Baldev Singh about whom the parents of the deceased have stated. He has stated that his house is near the house of PW-1 Om Parkash. He further stated that Sunita was living with her husband nicely for 5-6 months and lateron told him that she was being harassed by her husband and Jethani. He also stated that when Sunita came beaten, her clothes were torn and Hari Ram had given an undertaking and then the appellant had taken Sunita. He admitted that he was not related with Om Parkash and the mere fact - 6 - that he was not related to the deceased’s father is not sufficient to hold that he could not have been called or could not have been told about the facts by the deceased. He admitted in cross examination that he had suggested that Hari Ram should be called who had arranged the marriage in between the parties. The said Hari Ram had been examined as PW-5, who stated that the deceased had gone to her parents’ house after a quarrel in the house of the accused about 2-1/2 months prior to her death. He stated that Karam Singh came to him and requested him to accompany him to bring her back. He went with the accused Karam Singh and asked the parents of the deceased to send her with Karam Singh and she was sent. He clearly stated that in his presence, the deceased had told that Karam Singh was not tolerating her and used to harass her. In cross examination he has stated that Om Parkash was asking him to instruct Karam Singh to improve his behavior with the deceased. He clearly stated that two children of the deceased died after the birth but he had not seen the deceased in serious mood since he had not met her. A perusal of the statement of the parents of the deceased, namely, PW- 1 Om Parkash and PW-2 Ghambri Devi shows that they have clearly stated about the incidents that took place when the deceased came to their house and was sent back on the advice of PW-5 Hari Ram. Both the parents of the deceased had also stated about the last demand made for Rs.15,000/- for the purchase of Thresher, which has been so stated by the parents of the deceased. The mere fact that PW-1 Om Parkash had not stated to the police in his statement that Rs.15,000/- were being demanded for the purchase of the Thresher is not sufficient to hold that this statement cannot be believed since he has stated about this demand of Rs.15,000/- made by the accused through the deceased in - 7 - the court. These statements in regard to harassment have been duly corroborated by PW-4 Baldev Singh, a neighbour of PW-1 Om Parkash, and PW-5 Hari Ram through whom the marriage had been settled and the statements of both these independent witnesses do not suffer from any infirmity, contradiction or any such fact so as to hold that their statements do not inspire confidence. The statement of PW-2 Ghambri Devi, mother of the deceased, was sought to be condemned for the reason that she nowhere stated that she had told her husband also about the illicit relations of the appellant with his brother’s wife co-accused Indira till the death of her daughter and she told this fact to her husband only after the death of the deceased. However, this fact stands established from the statement of PW-2 Ghambri Devi that the deceased had also stated about the cause of harassment i.e. the illicit relations between the appellant and his Bhabhi. It was sought to be argued that this looks unnatural that the mother of the deceased, though had learnt this fact, will not tell her husband about the specific cause of harassment. The human behaviour varies from person to person and PW-2 Ghambri Devi may not have thought it fit to tell this fact to her husband lest he may be depressed or disturbed or for any such other reason. It cannot be accepted that in a given circumstance, all persons will behave in similar manner and the mere fact that PW-2 Ghambri Devi did not tell about this illicit relationship of the appellant with his Bhabhi to her husband is not sufficient to hold that her statement cannot be relied upon. PW-1 Om Parkash has stated that he learnt about this fact from his wife after the death of his daughter and I see no reason to disbelieve his version or that of his wife Ghambri Devi due to this reason that he was not told about this relationship earlier. - 8 - The second plea taken was that PW-1 Om Parkash had not stated that this demand was made for Thresher in the police statement and that he has stated this fact in the court and PW-2 Ghambri Devi had stated that this demand was made for the purchase of Thresher. This fact stands established that a demand of Rs.15,000/- was made by the appellant through the deceased and there are no contradictions as to when this demand was made i.e. sometime prior to her death and the sum demanded. The minor contradictions are bound to be there in case of natural witnesses and the evidence of these two persons i.e. PW-1 Om Parkash and PW-2 Ghambri Devi, the parents of the deceased, have to be considered in the light of the facts that they appeared to be illiterate people, who had no specific knowledge of the date and month or the specific dates when their daughter visited their house. It has to be seen as to whether these statements suffer from any infirmity or that they have stated like a parrot in regard to the date, month or year of the visits by the deceased. While appreciating the evidence, it has to be seen as to which strata of society the prosecution witnesses belong and whether they have any sense about the date or month or not. This fact cannot be lost sight off that the marriage had taken place on 10.2.1990 and the deceased died within about 4 years and 8 months of marriage on 11.10.1994 by taking poison. In case the deceased was being kept nicely by the appellant, there was no occasion for her to commit suicide. A plea was sought to be taken half heartedly from the cross examination of the witnesses that the deceased was depressed due to the death of her children who were born from this wedlock. However, this plea does not stand substantiated that the deceased was in disturbed stage or ever had fallen ill due to this reason or was taken for treatment and to my mind, this plea cannot be - 9 - said to have been substantiated from the cross examination of the witnesses that in a state of depression or so, the deceased may have committed this suicide. There is nothing in the statements of any of the witnesses to substantiate this plea or raise any doubt in the mind of the court that this version may be correct. Another plea sought to be raised was that the inquest report was signed by the appellant and the father of the deceased and the last rites were performed by the appellant in presence of the parents of the deceased and no objection was raised to the performing of the last rites on that day prior to the lodging of the report, there was no occasion for the complainant to have lodged the report next day. There is no force in this submission since the mere fact that the deceased’s father did not deem it necessary to create a scene at the time the inquest report was prepared or the last rites were performed by the appellant in presence of the parents of the deceased and this does not lead to the inference that the complainant was not entitled to lodge the report on the next day when, in a cool mind, they may have thought it fit to lodge the report with the police since their daughter had died due to suicide, which, allegedly, had been committed due to the harassment caused by the appellant to the deceased. I do not find any reason to disbelieve the version of the deceased’s father simply because he did not lodge the report on that day itself and let the body to be cremated without any difficulty. Therefore, the contention putforth is repelled being devoid of any force. Coming to the other evidence, this fact stands established that the deceased had died due to the taking of some poisonous substance by her and according to the report, the deceased had died due to asphyxia after consuming some poisonous substance. The report of the chemical examiner was also - 10 - received which also showed that the deceased had died after consuming Aluminium Phosphide poison and accordingly this fact stands established that the deceased had not died a natural death but due to the taking of poison by her. The evidence led by the prosecution clearly establishes that the deceased had died since she was being harassed by the appellant and was being given beatings and demand of money was also conveyed to the parents of the deceased through her and there was no other apparent reason for the deceased to commit the suicide. There is nothing on record to show that the deceased was suffering from any mental disorder or any other ailment which may have compelled her to take her life. The learned counsel for the appellant had relied upon the following decisions to substantiate his plea that the guilt of the appellant was not established under Section 306 IPC. The decision in Dudh Nath Pandey v. State of U.P., AIR 1981 Supreme Court 911, was relied upon to substantiate the plea raised by the learned counsel for the appellant that defence witnesses are entitled to equal treatment with those of the prosecution. It was held in this case that the courts ought to overcome their traditional instinctive disbelief in defence witnesses. Similar observations were made in State of Haryana v. Ram Singh, AIR 2002 Supreme Court 620, which were also relied upon by the learned counsel for the appellant. Reliance was also placed on the decision in State of Himachal Pradesh v. Dharmi Devi and others, 1998(2) Shim.L.C. 452. In that case there were allegations of maltreatment, harassment and demand of dowry against the respondents in-laws of the deceased. It was held that the - 11 - prosecution has not been able to prove them. On the other hand, after consumption of poison by the deceased, respondent acted fairly to take her to hospital and inform her parents immediately. It was held that maltreatment not being to that extent that abetted suicide. Therefore, allegations were held to have not been proved. The learned Law Officer in support of his submissions that the guilt of the accused stands established had relied upon the following decisions. The decision in Gurbachan Singh v. Satpal Singh and others, AIR 1990 Supreme Court 209, shows that in that case the death of the a newly married girl had taken place because of burn injuries. There was evidence of father of deceased that the deceased complained about harassment and torture by her in-laws for bringing insufficient dowry. In-laws also accusing deceased of carrying illegitimate child. There were no burn injuries on finger tips of any member of the accused family. It was held that it belies accidental death. The deceased held committed suicide at the instigation of her husband and in-laws. It was held that presumption under Section 113-A of the Evidence Act is also applicable. It was also held that the provision is procedural, therefore, this provision has retrospective application. The observations were made on the basis of the facts proved in that case. In the present case, there is no specific evidence on record to show that the appellant informed the parents of the deceased immediately though the information was sent through one Shiv Ram, who had informed the parents of the deceased. No objection was raised at that time by the father of the deceased and the mere fact that no objection was raised is not sufficient to hold that there was no grievance of the deceased since in all fairness the deceased’s - 12 - father may have thought it fit not to precipitate the issue at the time of cremation of dead body. Therefore, no benefit can be taken by the appellant in this regard. From the above detailed discussion of the evidence, it is clear that the parents of the deceased have clearly stated about the harassment caused to the deceased who had visited their house and was sent back with the appellant at the instance of mediator Hari Ram. There is also unanimity in the statements of both these witnesses that the deceased came to their house, stayed there and complained about the harassment and there are no contradictions in regard to the money aspect i.e. the demand for money to the extent of Rs.15,000/- and the statements of the parents of the deceased, namely, PW-1 Om Parkash and PW-2 Ghambri Devi have to be considered in regard to the period keeping in view the fact that they are illiterate persons having no sense of timings. In regard to the plea that the defence witnesses be given equal treatment, the accused has examined DW-1 Leela Devi, wife of Hari Ram, who simply stated that the deceased used to remain upset because of the death of her children but she never complained to her about any beatings to her by her in-laws. In cross examination, she had admitted that the accused persons are not related to her but they only belong to her village and there was nothing specific on record to suggest as to why the deceased will have confidence in this witness and make a complaint to her in preference to her parents. DW-2 Lakhu Ram has simply stated that three children of the deceased had died and he never heard that Sunita had committed suicide as a result of beatings given to her by her in-laws. - 13 - The statements of these witnesses are not such so as to raise a doubt in the mind of the court that the prosecution story may be incorrect. From the above detailed discussion, it follows that the guilt of the appellant was clearly established that he caused harassment to the deceased which compelled her to commit suicide within 4-1/2 years of her marriage. According to Section 113-A of the Evidence Act, presumption can be drawn as to abetment of suicide by a married woman that it has been abetted by her husband or any relative of her husband if she commits suicide within a period of 7 years from the date of her marriage. This provision was inserted by Act 46 of 1983 and, therefore, this provision does apply to the present facts since it had already been inserted prior to the occurrence in question. I have referred above to the decision of the apex court. Even if it was not applicable at the relevant time, since being a procedural law, it has retrospective effect. I have given my consideration to the evidence, arguments raised and I find no reason to disagree with the findings recorded by the learned trial Court that the appellant was guilty of abetment of suicide by his wife and these findings are liable to be affirmed. Coming to the sentence imposed by the learned trial Court, no arguments were raised in this regard by the learned counsel