Whether reporters of the local papers may be allowed to see the judgment? Yes. IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. Criminal Appeal No.52 of 1996. Judgment reserved on: 8.12.2009. Date of decision: December 15th, 2009. State of Himachal Pradesh. ….Appellant. Versus Rattan Chand & another. ….Respondents. Coram The Hon’ble Mr. Justice Surjit Singh, Judge. The Hon’ble Mr. Justice Surinder Singh, Judge. Whether approved for reporting? Yes. For the appellant : Mr. P.M. Negi, Dy. Advocate General. For the respondents : Mr. M.S. Chandel, Sr. Advocate with Mr. Rakesh Jaswal & Mr. Dinesh Thakur, Advocates. Surinder Singh, Judge: In this appeal, the acquittal of the respondents, for the offences under Sections 302 and 109 of the Indian Penal Code, passed by the Court of Sessions, has been challenged by the State. 2. In short, the prosecution story as emerges from the evidence on record can be stated thus. Manbhari, deceased daughter of PW1 Taria Ram was married to respondent Rattan Chand in village Sindhar about 11 years prior to her death, where, he was residing with his parents. Respondent No.2 Mathru Devi is the mother of respondent Rattan Chand. At the time of his marriage, respondent Rattan Chand was unemployed. After about two years of his marriage, he joined the Army. His wife Manbhari kept on residing with the parents, - 2 - brothers and other family members of her husband in the said village. 3. It is alleged that after about four months of their marriage, respondent Rattan Chand started maltreating his wife Manbhari at the instance of his mother Smt. Mathru Devi respondent, on the ground that she was ugly looking and not of their choice, but it was Nokhu Ram father of Rattan Chand, who insisted upon him to marry with her. Respondents also used to tell her that she was not able to pull on with the work in the family. 4. During the said wedlock with the deceased, she gave birth to two daughters. 5. It was also the case of the prosecution that two years prior to her death, Manbhari was given beatings by respondent Mathru Devi, which left the mark of injury on her forehead, which was also noticed by her father PW1 Taria Ram when she had visited his place. Thereafter Taria Ram went to the house of the respondents, but they did not open the door of their house. He called the villagers and Taria Ram threatened the respondents, if they would not open the door, he would report the matter to the police for giving beatings to his daughter. On this, the door was opened and due to initiative of one Narainu, Member of the Gram Panchayat, a meeting was held wherein the respondents gave undertaking not to maltreat his daughter Manbhari, but even thereafter, the respondents did not stop maltreating her. Further at 3/ 4 occasions, a local - 3 - Panchayat was convened and matter was conciled when the respondents begged pardon, with the assurance not to repeat such type of instance, but the respondents did not mend their ways. It is alleged that prior to her death, PW8 Kalasi Devi, a neighbour of the respondents, in the evening heard about commotion, in the house of the respondents. Next morning, around 8 a.m., Manbhari made a complaint to her that her husband Rattan Chand sarcastically passed remarks as to why her father Up-Pradhan did not come with her. 6. On 23rd March, 1992, at about 8 a.m., deceased Manbhari visited the house of PW2 Amar Nath, Up-Pradhan of their Panchayat and complained about the beatings given by her husband during the intervening night of 22nd and 23rd March, 1992 to him. She requested Amar Nath to visit her house and tell the respondents to mend their ways. Amar Nath aforesaid told Manbhari to go back to her house and he would shortly visit them. 7. When Manbhari left his house after about 10 minutes, PW2 Amar Nath went to the house of the respondents around 8.15 a.m. and noticed that Manbhari was lying on the floor of the room. She was restless and was groaning. Nokhu Ram, father of respondent Rattan Chand was present there. Amar Nath asked him as to what had happened to her. She was alright when she had just visited him. On this, Amar Nath was informed that she had consumed some poisonous substance. - 4 - 8. Amar Nath told respondent Rattan Chand to call for a doctor, but in turn, he told that he would rather arrange for the fuel wood to cremate her and then he left the place. Thereafter Amar Nath called the villagers. Dhani Ram (PW3) and Kirpa Ram came to the spot. Seeing Manbhari in a critical position, Amar Nath telephonically informed Dalbeer Singh Pradhan of the Gram Panchayat. In the meantime, Manbhari had died. Thereafter Amar Nath rang up to police and informed that Manbhari had died due to the consumption of some poison. Police recorded this information in the daily diary Ex.PG. The parents of the deceased namely PW1 Taria Ram and PW4 Sunehru Devi were informed. They reached in the house of the respondents around 10/11 p.m. 9. PW16 Inspector/SHO Phul Parkash of Police Station Bharari, visited the spot around 12.30 p.m. alongwith the police party. He inspected the spot and prepared inquest papers Exts. PB and PB/1, in the presence of PW2 Amar Nath and PW3 Dhani Ram. Thereafter the dead body of the deceased was sent for autopsy. He also prepared site plan Ex.PK. 10. PW12 Dr. Mohinder Singh conducted the postmortem of the dead body on 24.3.1992 at 10 a.m. Doctor noticed that the trouser was soiled with stool. Her hair and clothing contained hay particles. White fine froth was coming out from her mouth. Tongue was protruded and clinched between the teeth. Blood-stained fluid was coming out of nostrils. Eyes were congested and there was swelling over the right cheek - 5 - between the angle of mouth and angle of mandible over an area which was 3 cm in diameter. Doctor also noticed 0.8 cm crenscentric abrasion over the right side of the chin 2 cm below the angle of mouth. 0.75 cm long crenscentric abrasion and two linear abrasion were over the left sub mandibular region. 11. All the aforesaid abrasions were ante mortem. On exploring the swelling on the right cheek, the doctor noticed haematoma. 12. Lungs were found congested and on cutting froth came out from both the lungs. 13. Doctor also found the stomach congested and it contained the yellowish green muscilage fluid. Small and large intestine, liver, spleen, kidney were congested. Bladder was empty. 14. The doctor opined that death was due to asphyxia. He issued postmortem report Ex.PH. Viscera was sent for the forensic examination. As per the report, Ex.PL, no particles of poison were detected therein. After considering the report, Doctor opined that the victim died of asphyxia due to smothering. The time between death and postmortem was 24 hours and between the injury and death instantaneous. 15. The dead-body of Manbhari was cremated. After that on 24.3.1992, at about 7 p.m., police recorded the statement Ex.PA of PW1 Taria Ram, under Section 154 of the Code of Criminal Procedure, on the basis of which FIR Ex.PA/1 was - 6 - lodged and the further investigation was conducted by PW15 ASI Ajit Singh. Police arrested the respondents. 16. During interrogation of respondent Rattan Chand, he made a disclosure statement Ex.PE on 29.3.1992, under Section 27 of the Indian Evidence Act, to the effect that he had kept concealed his clothes, which he was wearing at the time of quarrel with the deceased and he could recover the same. Pursuant to this statement, he got recovered his shirt Ex.P2 which had two buttons missing and Jersey Ex.P3, which were lying on the first floor of his house. The neck portion of the Jersey was torn. These clothes were taken into possession vide memo Ex.PD. One button Ex.P1 similar to other buttons of shirt Ex.P2 was taken into possession on search from the room of the respondent Rattan Chand vide memo Ex.PC. 17. On the completion of the challan, the case was presented in the court for the trial of the respondents. 18. Respondents were charge-sheeted for the aforesaid offences, to which they pleaded not guilty and claimed trial. 19. Prosecution led its evidence to prove the charges and the respondents were also examined under Section 313 of the Code of Criminal Procedure. They denied the incident, as alleged. According to Rattan Chand, during that period, he was posted as Sepoy in the Dogra Scouts and was on two months annual leave. His wife wanted to accompany him to the place of his posting, but he declined to take her alongwith him as there was no arrangement of family quarter in that area. PW2 Amar - 7 - Nath instigated her that he should accompany her to his Unit. On 23rd March, when he returned from the house of his sister, he noticed that she was lying in the arms of his father Nokhu Ram. Dhani Ram, Panjku Ram, Kalasi Devi, Dullambi Devi, Urmila Devi and Dhani Ram were in the room. PW3 Dhani Ram and Panjku Ram were forcibly putting the water in the mouth of Manbhari and he was told that Manbhari had taken poison. Thus, they were putting the saline water into her mouth. The water entered into the wind pipe and due to chocking, she had died. According to him, he was falsely implicated in the case. He further stated that although viscera of the deceased was taken into possession and sealed, but it was destroyed by HC Ram Parkash, in collusion with the prosecution witnesses, to destroy the evidence of poison. He also stated that Doctor, who had conducted the postmortem, was neighbour of his in-laws, resident of village Masuar. 20. Respondent Mathru Devi stated that the deceased was residing separately and she was in her village on the day of the alleged incident. According to her, deceased died because of consuming poison. When she came to the spot, she found Manbhari in the arms of her husband Nokhu Ram. Panjku Ram etc. were also present there. In the meantime, her son Rattan Chand came there. At that time, Panjku Ram and others were forcibly putting saline water into the mouth of Manbhari to force her to vomit, which might have entered into the wind pipe of Manbhari, due to which, she might have died. She also pleaded - 8 - innocence and further stated that her left arm was fractured and was not in a working position. 21. The learned trial court did not believe the prosecution witnesses, as such, at the end of the trial respondents were acquitted. 22. We have heard the learned counsel for the parties and have reappraised the evidence on record. 23. Respondent Rattan Chand was charge-sheeted, for the offence of murder of his wife Manbhari and his mother Mathru Devi, for abetting the aforesaid offence. PW2 Amar Nath stated that on 23rd March, 1992 the deceased came to his house at about 8 a.m. and complained against respondents that during the previous evening and also the intervening night of 22nd and 23rd March, 1992, she was given beatings by her husband at the instance of his mother and further that she requested him to visit her house to tell the respondents to mend their ways. Amar Nath (PW2) sent her back to her house with the assurance that he would follow her shortly. He reached the house of the respondent i.e. around 8.15 a.m. after about 10 minutes. He stated that as soon as he entered house of the respondents, he saw that Manbhari was lying on the floor of the room. She was groaning and restless. Respondents were present on the spot alongwith Nokhu Ram, father of Rattan Chand. Nokhu Ram told him that she consumed some substance. Thereafter, he told Rattan Chand to call the doctor, but he told that he would make arrangement for fuel wood to cremate her. When villagers - 9 - gathered there, PW2 reported the matter to the Pradhan Dalbeer Singh and also informed the police telephonically. In cross- examination, he stated that there are 2-3 houses in the vicinity facing opposite to the house of the respondents at a short distance. He was first to reach the spot. He further stated that the occupants of the houses nearby were looking curiously towards the house of respondents as there was some commotion, but he did not talk to any of them to know about the incident. He stated that when Pradhan had arrived at the place of incident, he reported the matter to the police telephonically. He further stated that although he reached the house of the respondents on that day around 8.30 a.m., but he informed the police around 3.30 p.m., because a message was sent to the parents of the deceased and they had not arrived till then. He further stated that there was one Doctor Balbir Singh, GMS nearby, but it was informed by the members of the family of the respondents that when said doctor was told that Manbhari had consumed poison, he refused to come there. He admitted that when he reached the house of the respondents in the morning, solution of water and salt was being administered to her, but she was not accepting it, however, he did not notice any blood or foamy saliva coming out of her mouth and nostrils. He further stated that his statement was recorded by the police on 24.3.1992 at 11 p.m. He was also confronted with his previous statement Ex.DA, wherein it was not recorded that he asked the respondents as to what had happened to the deceased in such a - 10 - short time. He also stated that deceased had not vomited in his presence, however, some foamy substance was coming out of her mouth, thereafter she had died. 24. PW3 Dhani Ram, a neighbour of the deceased stated that on 23rd March, 1992, Amar Chand Up-Pradhan called him to his house informing him that some quarrel had taken place in the house of the respondents. When he went there, Manbhari was lying in the room struggling for her life. Respondents were present in the house alongwith Nokhu Ram. Thereafter the matter was reported to the Pradhan, Gram Panchayat Taliana. When they returned back, Manbhari had died. Thereafter PW2 Amar Chand informed police. He stated that some injuries were also noticed by him on the face of the deceased. He was also a witness to the inquest reports Exts.PB and PB/1. 25. In his cross-examination, he stated that when he alongwith PW2 Amar Nath went to village Taliana from the house of the respondents, Rattan Chand was loitering in the courtyard of his house. He did not talk to him. The deceased was not speaking. Amar Chand did not offer any water to Manbhari. Nokhu Ram, her father-in-law was holding her head in his lap. He stated that he did not enter into the room where Manbhari was lying, but chose to remain outside the room at the door from where everything was visible. He also stated some villagers were present there. Pradhan had also come to the spot and he did not see any vomit in and around where Manbhari was lying, but - 11 - some water was lying on the spot. He further stated that when the mother of the deceased reached the spot, some froth mixed with blood was there on the clothes of the deceased. He also stated that when Pradhan and some villagers came to the spot, they also informed them that Manbhari had consumed something, as told to them by the respondents. 26. PW8 Kalasi Devi neighbour stated about some quarrel had taken place between respondents and the deceased during the previous evening, as disclosed to her by Manbhari. In her cross-examination, she stated that she told her that when Manbhari returned from the house of PW2 Amar Nath, the respondents sarcastically asked her about the coming of Pradhan with her. She further stated that she had been visiting her almost daily, but prior to the alleged occurrence, she did not ask about her anything, and even Manbhari never used to discuss with her any domestic affair. She further stated that salt-solution was administered to Manbhari by Panjku, a co-villager, to which she noticed from the courtyard of her house, which is common with the respondents. She also stated that the solution was not going into her body and it was being administered to her with some effort. A pot was kept beside here, but she did not vomit. 27. PW5 Kalan Devi is a resident of another village Behal, which is at 1 K.M. from the house of the respondents. She stated that deceased used to meet her and had been telling the tale of her woes she faced in the house of respondents, which became unbearable to her. In cross-examination, she stated that - 12 - deceased was not related to her. She died on 23rd March, however, the deceased met her previous day in a religious function in the evening on 22nd March. She further stated that the deceased was not her friend and she never visited her house. She also stated that on 26th March, she went to the village of respondents and there were about 20-25 ladies, out of them some were of Mahila Mandal and everyone wanted the justice to be done and out of all the ladies from her village, her statement and that of one Hardei, was recorded by the police. She denied that being an office bearer of Mahila Mandal, she volunteered herself to become a witness at the behest of the interested parties to depose against the respondents falsely. 28. There is no direct evidence with respect to causing of death of deceased Manbhari. It is only circumstantial type of evidence that when she had gone to the house of PW2 Amar Nath to report about the maltreatment against her, within 15 minutes, she had died, in her house. According to PW12 Dr. Mohinder Singh, who conducted the postmortem, she had some injuries on the face and opined that she died of asphyxia and he reserved his final opinion to be given after the report of forensic examination of her viscera. He admitted that asphyxia could be caused due to poisoning, tetanus, drowning and hanging, but according to him, there were no such sign in the present case. He also stated that at the time of preparing postmortem report, he was not sure about the actual cause of death of the deceased. On 6.6.1992, when he perused the chemical - 13 - examiners report, it was then he opined that asphyxia was because of smothering as no poison was detected in the viscera. Had the poison been detected, he would have opined that the asphyxia was caused due to poisoning. He also stated that there was no injury in the inner or outer part of the nose of the deceased. He also admitted that chocking resulting in asphyxia death could also occur during the process of vomiting in very rare cases. In the inquest reports Ext.PB/1, there is a reference that when the father-in-law of the deceased was putting saline water in her mouth, the deceased was putting resistance. It was a riddle to the police. They could not find complete cause of death. Therefore, they based the result of investigation entirely on the report of doctor and chemical examination of viscera, which could not solve it beyond a reasonable doubt. 29. On the critical examination of the evidence on record, we find that one of the witnesses (PW3), referred above, has stated about the presence of some vomittance alongwith blood on the clothes of the deceased, but that was also not taken into possession by the police for its examination about its contents. Further, one of the Jar containing viscera sent for the chemical examination was also found to be broken which could have given way to the liquid substance. On the examination of the dead body, there were no visible signs of any violence except some injury on her face. 30. The witnesses aforesaid have categorically stated that the people present there, including the father-in-law of the - 14 - deceased alongwith Panjku Ram, were trying to forcibly give her the saline-water and this could have caused some injuries on the face of the deceased. 31. Doctor himself was not sure at the time of conducting the postmortem about the cause of death. He simply stated that death was due to asphyxia and further stated that he would have changed his opinion had there been poison, found on the chemical examination of viscera. But the chemical examination report negativated poison thus after about four months, he changed his opinion and stated that the death was due to smothering, which caused asphyxia. 32. There is absolutely no evidence on record, direct or circumstantial to show either that the respondents has caused the murder of the deceased. The respondents could not be connected in any way with the offences charged. 33. In fact, the cause of asphyxia could be from suffocation, smothering or closure of mouth and nostrils, chocking or obstruction of the air passes from within or pressure on the chest. 34. It is evident from the record that the people present beside the deceased had tried to induce her vomiting by giving her saline-water forcibly, even that could have been chocked the wind pipe of the deceased and caused death accidentally. Further the Doctor also did not find any laceration in the linear mucous of the lips which could have been present because of the pressure of teeth due to smothering. Therefore, in these - 15 - circumstances, we do not find anything wrong in the findings of acquittal of the respondents, recorded by the learned trial Court for the offence of murder. 35. Learned Deputy Advocate General faced with the above situation, forcefully argued that if it was not a case of murder, alternatively this case would fall under Section 306 of the Indian Penal Code because, firstly there is an evidence on record to show that the death of the deceased was not natural and secondly, she was being maltreated by the respondents, thus the respondents had abetted her to commit suicide. 36. Though, there is some evidence with respect to beatings having been given by the respondents to the deceased and even the deceased had gone to the house of PW2 Amar Nath seeking his intervention and to tell the respondents to mend their ways and soon thereafter she died because of asphyxia and apparently the cause for that is not established beyond doubt. 37. It is a settled law that where there is no doubt about the facts, which can be proved, but a doubt arises as to which of several offences have been committed on the proved facts, in which case any number of charges can be framed and tried or alternative charges can be framed, there must be a single act or series of acts of certain nature and that nature must raise a doubt about which of several offences the facts, which can be proved, will constitute. But that doubt may include a doubt as to what exact fact within the ambit of the series of acts postulated - 16 - can be proved. But in the instant case, there is no doubt about the facts, which were clear to the police and accused respondents were required to defend themselves for the specific charges on the undisputed facts. Therefore, at this stage, we cannot upset the acquittal of the respondents and convict them for the offence, under Section 306 of the Indian Penal Code as it is a distinct offence and facts placed before