1 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 182 of 1994. Decided on: 24.04.2008 ____________________________________________________________ State of H.P. ……..Appellant. Versus Karnail Singh . ……..Respondent. Coram Hon’ble Mr. Justice Surjit Singh, J. Hon’ble Mr. Justice Surinder Singh, J. Whether approved for reporting1? No. For the appellant : Mr. P.K. Sharma, Addl. Advocate General with Mr. P.M. Negi, Dy. Advocate General. For respondent : Mr. Malay Kaushal, Advocate, vice Mr.Ramakant Sharma, Advocate. ____________________________________________________________ SURINDER SINGH,J. (oral) Heard and gone through the record. The respondent was put on trial, for the offences punishable under Sections 306 and 498-A of the Indian Penal Code. At the end of the trial, the respondent was acquitted and the State has assailed his acquittal in this appeal. In brief, the facts which emerge from the evidence on record are that Smt. Asha Devi (deceased) was married to the respondent in March, 1985. From this marriage, she gave birth to two children, one female and another male. She was again pregnant for the third time. It is alleged that she went to the house of her parents on Ist January, 1992, with her Jethani but there she was not allowed to speak and they returned the same day. On 5.1.1992, Asha Devi committed suicide by consuming an insecticide. Immediately, she was removed to the hospital by the respondent and her mother-in-law, but her condition did not improve. She had developed the Whether reporters of the Local papers are allowed to see the judgment? Yes. 2 cardio respiratory problem and expired at 11.25 a.m. Her MLC is Ex.PB, issued by Dr. Ashish Lekhi (PW2). PW-15 ASI Rulia Ram of Police Station Amb, received a message from Daulatpur that Asha Devi was admitted in the hospital, where she had died. He visited the hospital and conducted the proceedings under Section 174 of the Code of Criminal Procedure. He prepared the death reports Exts.PW15/A and B and sent the dead body for post-mortem to district Hospital, Una. When he was busy in the aforesaid inquiry, he received the case file for the investigation of the case, which contained the FIR Ex.PE, registered at the instance of Gurdev Singh (PW9), the brother of the deceased, under Section 302 read with Section 34 of the Indian Penal Code. ASI Rulia Ram prepared the site plan Ex.PW15/C. One plastic tube Ex.P1, which contained the insecticide, was also taken into possession vide memo Ex.PC. He recorded the statements of the witnesses. It was precisely stated by Gurdev Singh in the FIR that whenever Asha Devi had visited her parental house, she used to complain that the respondent had been given beatings to her. In this regard, the respondent and his father Batna (PW14) were exhorted by Nangal Jarialan Panchayat number of times. Jagdish and Onkar Singh, Pradhans of the Gram Panchayats Nangal Jarialna and Nakroh respectively were also in the know of their strained relations. The complainant came to know at 3 O’Clock that Asha Devi was admitted in Daulatpur Hospital. Consequent there upon he alongwith his mother and the other ladies visited the hospital and came to know that Asha Devi had died and her dead body had taken to Una by the police. He suspected that she was murdered by the respondent and his brothers Jarnail Singh, Philu, Santokh etc. The post-mortem of the dead body was conducted by Dr. Gurcharan Singh (PW1). He found a blackish contusion on left eye lid and sent the viscera for chemical examination and received report Ex.PF. It 3 contained aluminum phosphate an insecticide. In the opinion of the Doctor, one tablet of aluminum phosphate was sufficient to cause the death. The police recorded the statements of Rattani Devi (PW4), mother of the deceased Gurdev Singh (PW9), the brother, Harbans Lal, Up-Pradhan of the Panchayat (PW11), Kartar Singh, Pradhan (PW12), Ram Pal, another brother of the deceased (PW13), Batna the father of the deceased (PW14) and ASI Rulia Ram (PW15) and also other witnesses. After completing the investigation, the case was presented in the court for trial of the respondent. Finding a prima-facie case against the respondent, he was charge- sheeted under Section 306 of the Indian Penal Code. The prosecution examined its witnesses to prove the charge and the respondent was also examined under Section 313 of the Code of Criminal Procedure. The respondent offered a detailed explanation right from the date of his marriage, till the death of the deceased Asha Devi, which can be summed up thus; that the parents of the deceased were not happy with this marriage with him. They wanted to settle her down with one Lala Ram. On the day of marriage, the stones were pelted upon the marriage party and after the marriage, the deceased stayed with the respondent in the matrimonial house for few days and started living with her parents for some time. Later she started residing for longer period in the house of her parents. The mother of the deceased used to force him to live separately alongwith Asha Devi (deceased). However, he got separated and his father gave him a buffalo and some land and he started living in another house, but despite that the deceased did not live with him. Even she did not look after him when he fell sick. The respondent, his aunt and the Panchayat members visited the house of the parents of the deceased to bring her back. Even the respondent deposited Rs.10,000/-, in her name. When the Panchayat members had gone to bring her back to his house, the deceased threatened them to commit suicide either by jumping into well or by consuming poison, 4 if she was forcefully compelled to go with the respondent. However, on the day of the alleged incident, around 7.30 a.m., when she was insisting upon to go to the house of her parents, he told her to go after about 3/ 4 days. Thereafter he went to his fields, leaving behind his deceased wife. When he saw her vomiting, he immediately called Dr. Ram Lal (PW10) a private practitioner who advised him to take her to the civil hospital Daulatpur but could not be saved. The respondent also adduced defence evidence and examined three witnesses. After hearing the parties and evaluating the evidence on record, the learned trial court acquitted the respondent, on the grounds: (a) that the abetment of suicide by the respondent is not proved; (b) the relations of the parents, brother and sister of the respondent, remained strained with the deceased and the reasons thereof were not very clear on the record; (c) The evidence shows that at the instance of the respondent, his father provided separate residence, land and cattle-head to him and also deposited Rs.10,000/- in the name of the deceased; thereafter the respondent and his deceased wife lived together for about 5 years till her death, and the statement of the brother of the deceased Gurdev Singh, complainant did not inspire confidence. He had been frequently making the additions in his statement before the Court in the sequence, which was contrary to the FIR making his version doubtful. (d) The visit of the deceased in the house of her brother on 1.1.1992 was also held to be palpably wrong and unbelievable, whereas the evidence on record shows that the respondent had made every effort to reconcile the matter with the parents of the deceased. The defence evidence has 5 probablised this fact. Since there was no abetment from the side of the respondent, therefore, the offence charged was not proved. According to Shri P.K. Sharma, learned Additional Advocate General, duly assisted by Mr. P.M. Negi, learned Deputy Advocate General, the findings of acquittal, recorded by the trial court are perverse. If the evidence on record is gone into in the right perspective, there are grounds to convert the acquittal into conviction. Contra Shri Malay Kaushal, learned counsel appearing for the respondent has supported the judgment of acquittal and also argued that the findings are borne out from the record which calls for no interference. We have given out thoughtful consideration to the rival contentions of the parties and have carefully reappraised the evidence on record. As a matter of fact, when the Incharge of Police Post Daulatpur came to know about the death of Asha Devi in the hospital, ASI Rulia Ram visited the spot and perusal of inquest paper Ex.PW15/A shows that before reaching the spot, ASI Sansar Chand, Incharge, Police Post Daulatpur was already present there in the hospital alongwith Karnail Singh respondent. At that time, the said respondent had informed the police that on 4.1.1992, in the evening, his deceased wife had informed him about the missing of the empty gunny bags meant for covering the cattle but he told her that he would get another for them. After taking the meals, both of them had slept. In the morning, he tethered the cattle outside and told his wife to carry the cow-dung, but there was tiff between her and Santosh, wife of his brother. Therefore, he carried the cow-dung and returned after about 15 minutes. He saw his wife lying on the cot in his room. On being asked, she did not give any reply and he got suspicious that she might have consumed insecticide. She started vomiting and then he took her to the private Doctor, for her treatment. The Doctor advised him to take her to the hospital. He took her to the hospital 6 where she died. All these facts were reiterated by him to the answer to question No.25 in his statement under Section 313 Cr.P.C. According to PW4 Rattani Devi, the mother of the deceased, after the marriage of Asha Devi with the respondent, he started mal-treating her and thereafter, she stayed in her parental house for about two years. On the intervention of both the Panchayats, she was sent back in the winter month in the year 1992. She still complained about the mal-treatment, but she persuaded her to go back and on the day of alleged incident, at about 1.00 p.m. she was informed by a boy from the village of the respondent that Asha Devi was ill and was admitted in the hospital. She went there and found her dead. In her cross-examination, she has stated that when Asha Devi came to her village, Nikki Devi came to take her back, thereafter the father of the respondent also approached her but she was not sent with any of them because of some quarrel between them. However, she admitted that the father of the respondent had separated the respondent and provided a separate residence to him and deceased Asha Devi, where they lived together for about five years. The house of the respondent is stated to be only 3 K.M. away from her (PW4) village. Further she has stated that Basanta, Attru and Batna had come to her during Jagya and provided a suit and Bhaturas, prepared of 20 Kgs of wheat and requested her to take Asha Devi back, but she (PW4) returned the suit and the Bhaturas to them and refused to send Asha Devi with them. She denied that she intended to marry the deceased with one Lalla Ram, s/o Lekh Ram. According to her, the deceased had been living in the house of the respondent for the last about seven months before her death. On the other hand, Gurdev Singh (PW9), the brother of the deceased gave another version that after the marriage, the deceased stayed only for a year in the house of her husband. She was ill-treated, 7 she came to the parental house, however, all of them persuaded her to go to her in-laws and finally, she came to their house in the year 1987 and stayed there for about two years. The local Panchayat intervened and on an undertaking given by the Pradhan of Gram Panchayat Nakroh, she was sent to her matrimonial house and in between, she had been visiting the parental house. She gave birth to a female child and both of them live together nicely for about two years. When she was pregnant for second time, she was again given severe beatings she came to their house but was taken back and she gave birth to a male child. Thereafter, their relations remained cordial for about one year. Then again, when she was pregnant for third time she was mal-treated. Thus, she visited his house on Ist January, 1992 at that time, she was accompanied by the wife of the elder brother of the respondent and she was not allowed to speak. Both returned on the same day and on 5.1.1992, he came to know that Asha Devi had died. According to him, when he saw the dead-body, her nose pin was not there and there was injury on her mouth, which according to the doctor PW1 Gurcharan Singh could be due to the struggle for life after taking poison. He did not say what was the purpose of their visit on 5.1.1992 and why both of them returned on the same day. If these facts were already known to the complainant then why he had not mentioned it in the FIR, is not explained. However, in his cross-examination, he expressed his ignorance about providing separate residence by the father of the respondent as also the land and cattle-head, whereas his mother PW4 aforesaid has admitted this fact. Although, he stated that he wanted that respondent should deposit Rs.10,000/- in her name only then Asha Devi would be sent to the house of the respondent. It is evident from the record that despite depositing the said amount in the name of Asha Devi, her mother was still reluctant to send her to her matrimonial home. Further it is denied by him that the deceased wanted to stay in the house of Lalla 8 Ram and she threatened to commit suicide if they would force her to join the company of the respondent. PW-11 Harbans Lal, Up-Pradhan has stated that there were complaints after about a year of her marriage from the mother of Asha Devi that the respondent had been torturing her daughter. Asha Devi had stayed in the parental house for about two years. Local Panchayat was convened, but the matter could not be finalized, however, on the undertaking of Onkar Singh (not examined), she was sent to the house of the respondent at his responsibility and thereafter, he did not hear any complaint of ill-treatment by the respondent. But however, he stated that the respondent and his father had told him that the deceased did not want to stay in their house and they had never beaten her. Kartar Singh (PW12), Vice President of the Nangal Panchayat had stated that the deceased was not liked by her in-laws and was beaten up by her husband. Efforts were made to settle the dispute by the local panchayat. Onkar Singh and Batna, the father of the respondent were present in the panchayat and he had advised the respondent and his wife to live affectionately, for which the respondent agreed. In his cross- examination, he has stated that the deceased had stayed in the house of her parents for about three years after her marriage and she had made a complaint about six months before her death regarding giving beatings to him also, but he did not inform this to Harbans Lal aforesaid. PW-13 Ram Pal, the brother of the deceased had also stated about sending the deceased twice to the house of her in-laws with the intervention of the panchayat. It is also stated by him that when she was sent to the house of her in-laws after about 20 days, she and her husband started living separately in the family for about one year. It is denied by him that the deceased wanted to live with Lalla Ram. 9 The father of the respondent, Batna (PW14) though did not support the prosecution case, but in his cross-examination, he has disclosed a material fact that Asha Devi deceased had gone to the house of her parents after 15 days of her marriage and remained there for about 20 days. Then she again visited the house of her parents and this pursuit continued for about six months. Thereafter, he separated respondent and Asha Devi from his family and gave them a separate house, land and cattle-heads. This story goes consistent to the version of PW4, the mother of the deceased. According to him, once Asha Devi had gone alongwith the respondent to attend the marriage of her cousin and did not return for about 22 months, whereas, the respondent returned on the third day of their departure. When they went to take her back to the matrimonial house, the parents of the deceased did not send her back, but asked to return the dowry items. He then made an application before the panchayat for settling the matter. The gifts which were sent to the house of the parents were also returned and their behaviour was quite bitter. Thereafter, they came back. Asha Devi on that day was not there. He further stated that he had deposited an amount of Rs.10,000/- in the name of Asha Devi to take her back as desired by her parents and further according to him, Asha Devi wanted to stay in the house of Lalla Ram and not with the respondent. After culling the aforesaid evidence, it is apparent that respondent and his family members did their best to settle the matter and Batna Ram, the father of the respondent gave a separate residence, land, deposited money in the name of the deceased and provided cattle to them, but the mother of the deceased appeared quite reluctant to send Asha Devi back to her matrimonial home. Further the deposition of Gurdev Singh shows that he had deviated materially from the main pivot of the prosecution case. In the FIR, he suspected the respondent and his brothers for 10 causing the murder of his sister. His prejudice against the respondent appeared to be so severe that he had tried to improve his version against the respondent wherever he found it possible. His statement is quite contrary to the statement of his mother Smt. Rattani Devi (PW4). It is ostensibly clear from the record that right from the day of the marriage, there was no cordiality inter-se the parents of the deceased and the respondent. The evidence on record shows that it was the mother of the deceased, Rattani Devi, who had insisted upon the respondent to have a separate residence from the joint family. Even to rehabilitate the respondent and his deceased wife, Batna (PW14) provided them a separate residence etc. as aforesaid, even then the deceased found some excuses to visit her parental house and remained there for months together. The last incident of beating is alleged to be six months prior to the committing of suicide by Asha Devi, which is also not convincing. The respondent had explained at the earliest the cause of committing suicide as revealed from the inquest papers Ex.PW15/A prepared by the police, as discussed above. He has maintained the consistency in his statement under Section 313 Cr.P.C. and had given a detailed count regarding the same. From the circumstances, the act of suicide committed by Asha Devi does not appear to be in close proximity to the alleged beatings which are alleged to be given six months prior to her death, which story is otherwise not believable. In these circumstances, when there is no evidence worth inspiring confidence regarding the mal-treatment and cruelty and the period of seven years from the date of marriage and suicide fell short of few months, the presumption of Section 113-A of the Indian Evidence Act can also not be drawn. We have noticed that the circumstances put-forth in evidence are not of a conclusive nature and tendency so as to say that it was the respondent who had abetted the 11 commission of suicide by Asha Devi. In these circumstances, we do not find that there is any perversity in the judgment of acquittal recorded by the trial court; therefore, it calls for no interference. Accordingly, the appeal is dismissed. The respondent is discharged of the bail bonds entered upon by him, during the proceedings of this case. (Surjit Singh), Judge (Surinder Singh), Judge. April 24, 2008. (Pds)