HIGH COURT OF HIMACHAL PRADESH AT SHIMLA Cr.A. No. : 389 of 2004 Decided on: 11.8.2011 Madan Lal ……… Appellant. Versus State of Himachal Pradesh ………Respondent. Coram: The Hon’ble Mr.Justice V.K. Ahuja, Judge. Whether approved for reporting? No. For the Appellant: Mr.Ramakant Sharma, Advocate. For the respondent: Mr.J.S. Guleria, Assistant Advocate General V.K. Ahuja, J.(Oral): This is an appeal filed by the appellant against the judgment of conviction and sentence, dated 18.8.2004/20.8.2004, passed by the learned Additional Sessions Judge, Ghumarwin, vide which the appellant was held guilty under Sections 306 and 376 IPC and was sentenced to undergo imprisonment as under: Section 306 IPC RI for 5 years and fine of ` 2,000/-; in default, to undergo further RI for a period of two months. Section 376 IPC RI for 7 years and to pay fine of ` 2,000/-; in default to undergo further RI for a period of two months. However, the sentences were to run concurrently. ________________________________ Whether reporters of local newspapers may be allowed to see the judgment? Yes. - 2 - 2. Briefly stated, the facts of the case are that on 5.3.2002 at about 10.15 a.m., a report was lodged with the police by complainant Jagar Nath that today in the morning at about 4.00 a.m., he was called by Roshani Devi that son of Madan Lal was telling that Satya Devi had consumed poison. He came out but could not find any person and then went to the field and found that appellant Madan Lal, hereinafter also referred to as the accused, was having Satya Devi in his lap. He enquired from Madan Lal, who told him that Satya Devi had consumed poison and she was still breathing. However, she died there and he sent one Ramesh Kumar to inform the Pradhan of the Panchayat and the police. He also alleged that previously also a case of kidnapping had been lodged against Madan Lal and he must be meeting the deceased during night time. He alleged that the death of Satya Devi may have taken place because of the illicit relations with Madan lal, who had refused to marry Satya Devi and she was compelled to take this step. The complainant is the cousin of the deceased Satya Devi. On this complaint, a case was registered and on completion of investigation, the challan was filed before the learned Additional Chief Judicial Magistrate, Ghumarwin, who committed the case to the court of the learned Sessions Judge, Bilaspur from where the case was assigned to the learned trial Court, who tried the appellant under the - 3 - aforementioned Sections, leading to his conviction, as detailed above. 3. I have heard the learned counsel for the appellant and the learned Assistant Advocate General for the respondent and have gone through the record of the case. 4. The main witnesses in the case can be said to be the complainant Jagar Nath, cousin of the deceased, her brother Ramesh Chand, her father Shali Ram and other material witnesses examined by the prosecution. It has to be seen as to whether their statements prove that the accused was having illicit relations with the prosecutrix and she was compelled to commit suicide since she had become pregnant and the appellant refused to marry her. 5. PW-1 Jagar Nath is the complainant who reiterated the assertions made in the complaint that he found the Satya Devi in the lap of the accused, who died afterwards. He also stated that Satya Devi and the accused were in love with each other and they intended to marry. This is only an opinion given by the witness not based upon any evidence. He further stated that Satya Devi and the accused used to meet in jungle. This is also his opinion and he did not refer to any date, time etc. when he may have seen them in the jungle. He further stated that Satya Devi and the accused never met each other at the house of Roshani Devi, who was also a co-accused in the case. He - 4 - denied the suggestion that he had stated to the police that Satya Devi met the accused in the house of Roshani Devi during the previous night. In cross examination, he clearly stated that he was having this suspicion that the accused had been sexually exploiting Satya Devi for the last about one year. He also did not know if they intended to marry or not. He nowhere stated that he had ever seen them together from which an inference was drawn that they were having some sexual relationship. He stated that about one year prior to the occurrence, the accused had kidnapped Satya Devi. He further stated that Satya Devi was pregnant and the accused refused to marry her, therefore, this may be the cause for Satya Devi to have consumed poison. He never stated that the accused was called in his presence or he had refused to marry Satya Devi in his presence. In cross examination, he clearly stated that he does not know as to where was Satya Devi in the previous night. He further stated that he never saw Madan Lal accused visiting the house of Satya Devi. He further stated that Ramesh told him that the accused and Satya Devi used to meet each other in the jungle, which clearly supports my observation that there is no evidence that he had ever seen them together in the jungle. He further stated that no case was registered against Madan Lal for kidnapping one year prior to the occurrence. He further stated that Satya Devi was ready to - 5 - marry Madan lal, which is also an opinion given by him not based on any statement given by the deceased at any time. 6. PW-2 Ramesh Chand, who is the brother of deceased Satya Devi, has stated that he does not know why Satya Devi had consumed poison. He further stated that Satya Devi never went to the house of Roshani Devi to sleep there. He further stated that he does not know why Satya Devi committed suicide by consuming poison. Being the brother of the deceased, he must have been aware if she was having sexual relations with the appellant or intended to marry him or the appellant had refused to marry his sister in his presence. In cross examination, he clearly stated that he does not know if the accused refused to marry Satya Devi and denied that this was the reason for Satya Devi to have committed suicide by consuming poison. He, however, admitted that they were having illicit relations for the last 2/3 years, but did not state that he ever saw them at any time in jungle or in house in a compromising situation. He further stated that Satya Devi used to come to the house of Roshani Devi, but he does not know if Madan lal was meeting Satya Devi in the house of Roshani Devi. 7. PW-3 Subhash Chand, who is the cousin of the deceased, stated that he found Satya Devi lying dead and the accused was also present there. He clearly stated that he does not know why Satya Devi died. He also - 6 - admitted the fact in cross examination that Madan Lal had kidnapped Satya Devi in the year 2000. He further stated that Madan Lal was having illicit relations with Satya Devi, which is also his presumption not based upon any fact having been observed by seeing them together at any time. He also denied the suggestion that Satya Devi used to come to the house of Roshani Devi to sleep there. In cross examination, he clearly stated that he does not know as to why Satya Devi consumed poison. 8. PW-5 Shali Ram is the father of the deceased, who stated that she was found dead in the field behind the house of Roshani Devi on 4.3.2002. He clearly stated that he does not know as to why Satya Devi had consumed poison. He further stated that he does not know about the relationship of the accused with Satya Devi. He further stated that the accused visited their house once and thereafter he never visited their house. He also stated that Satya Devi consumed poison at her own will. He is the father of the deceased, however, he has not stated anything material as against the appellant in regard to the abetment of suicide or that the appellant had sexually abused the deceased at any time. In his statement, rather, he demolishes the case of the prosecution when he states that prior to the occurrence, the accused had come to his house and told that he wanted to marry Satya Devi and he had told the accused to bring 2-4 persons with him. This clearly - 7 - leads to the inference that the accused had never refused to marry the girl since she had become pregnant. His statement, being the father of the prosecutrix, was very material and he has clearly stated that the accused had never refused to marry Satya Devi. 9. PW-7 Sita Ram is the uncle of the deceased, who has stated that the accused was having illicit relations with Satya Devi and earlier a case was also registered against him. He denied his knowledge that in case the accused and Satya Devi used to meet each other. He only expressed his apprehension that the deceased may have consumed poison due to her illicit relations with the accused, but never stated about abetment of suicide by the accused. He further stated that Roshani Devi never gave shelter to Satya Devi and the accused in her house. He further stated that Satya Devi was pregnant and the accused refused to marry her and, therefore, she committed suicide by taking poison. He never stated that the appellant was called to the house and in his presence he had refused to marry the girl, which led to the suicide attempted by her. In cross examination, he clearly stated that he never saw Satya Devi and the accused with each other. Rather, he stated that he heard from others that they used to meet each other. He clearly stated that Madan Lal never refused to marry Satya Devi in his presence. He never saw Madan Lal visiting the village. - 8 - 10. The fact that the deceased died of having taken poison stands proved from the statement of PW-8 Dr.S.P. Bhangal. PW-9 Dr.N.K. Sankhyan, who conducted postmortem, also proves that the girl was pregnant at the time of death. 11. From the above discussion, it is clear that the facts prove that a report Ext.PB about the kidnapping was earlier lodged with the police on 25.2.2001 upon which an FIR bearing No.32 of 2001 was registered, vide which the allegations were made as against the appellant of having kidnapped the girl. However, this did not lead to any trial or conviction of the appellant since the matter was compounded by the father of the deceased, as admitted by him also and as has come up on the record. Therefore, no benefit can be taken by the prosecution on the basis of the previous report lodged to draw an inference that the accused was instrumental in abetment of suicide by the girl. There is no direct evidence led by the prosecution to show that the accused and the deceased were ever seen in compromising position or having sexual relation either in jungle or in the house or at any place and this is only the opinion expressed by the witnesses, which cannot be said to be conclusive to prove that the appellant and the deceased were having sexual relationship or that the girl had become pregnant and since the accused had refused to marry her, the deceased committed suicide. On the other hand, the - 9 - father of the girl has rather stated that the accused was willing to marry her and he had come on one occasion prior to the occurrence and had been asked by him to bring some persons with him and there is no evidence of refusal by the appellant at any time, which could lead to the conclusion that the appellant had abetted the commission of the offence. There is a statement of the Medical Officer PW-8 Dr.S.P. Bhangal, who had conducted postmortem, that no DNA test was conducted if the deceased was pregnant from the lions of the accused and, therefore, no inference can be drawn only on the basis of the opinion expressed by the witnesses that the accused was having illicit relations with the deceased. The findings arrived at by the learned trial Court are based upon the opinion expressed by the witnesses, who had never seen the girl having sexual relations with the appellant at any time, are, therefore, not sustainable in the eye of law. 12. In view of the above discussion, I accordingly hold that the findings recorded by the learned trial Court holding the appellant guilty are liable to be set aside. Therefore, appeal is accepted and the conviction and sentence imposed upon the appellant is set aside. Fine, if deposited, shall be refunded to the appellant after the expiry of the period of appeal and in case of any appeal, after the decision thereof. Bail bonds furnished by the appellant shall also stand discharged. - 10 - 13. The appeal stands disposed of accordingly. August 11, 2011 (V.K. Ahuja), (tilak) Judge