Gopal vs State of Haryana

R.K. Nehru, J.—By this judgment, I will dispose of Criminal Appeal No. 517/SB of 1986 and Criminal Revision No. 1216 of 1986, as these have arisen out of the same judgment of conviction and rest upon the same evidence.

Gopal appellant has filed Criminal Appeal No. 517/SB of 1986 against the judgment of conviction and the order of sentence, both dated 4-8-1986 passed by the learned Additional Sessions Judge, Hisar whereby the appellant has been convicted for an offence u/s 306, I.P.C. for causing the death of Smt. Sheela and as a result thereof, sentenced to undergo RI for seven years and fine of Rs. 10,000/-. In default of payment of fine, the appellant was further ordered to undergo RI for three years. Smt. Parmeshwari co-accused of the appellant was, however, acquitted by the trial Court vide the aforesaid order. Criminal Revision No. 1216 of 1986 was filed by Sumer Chand PW for enhancement, of sentence awarded by the trial Court.

The prosecution allegations in brief are that Smt. Sheela deceased in this case was the sister of Sumer Chand PW 4. Smt. Bhola Devi is their mother, Smt. Parmeshwari is the mother of Gopal appellant to whom Smt. Sheela deceased was married on 24-4-1983 at village Chausala. At the time of the marriage of Smt. Sheela deceased, her parents had spent about Rs, 25,000/. After twenty days of the marriage, Gopal appellant went to Sumer Chand PW 4 and asked for Rs. 200/-for investing the same in the Canteen. Sumer Chand PW 4 gave the said amount to Gopal appellant, About 2 1/2 years thereafter, Om Parkash, father of Gopal appellant went to Sumer Chand PW 4 from whom he took Rs. 100/-. After the marriage, Gopal appellant along with the deceased used to go to his in-laws with a view to get something or the other. In August, 1983, when Smt. Sheela deceased visited her parents for the second time, they had spent an amount of Rs. 3,000/-on Dusar ceremony. However, the in-laws of Smt. Sheela deceased used to taunt her that her parents had done nothing in their marriage whereas other people were ready to spend Rs. 50,000/- or Rs. One lac on the marriage of Gopal appellant. Gopal appellant and his parents used to threaten the deceased to be divorced because she was of dark complexion and also with a view to extort more money from them. In December, 1984, Gopal appellant went to his in-laws at Bhuna and asked for a woollen suit. Sumer Chand PW 4, however, expressed his inability to meet this demand. On that very night, the deceased told her brother Sumer Chand PW 4 that the purpose of her being brought by Gopal appellant was in fact to get a sum of Rs. 5000/-from him. The deceased had then also told her brother Sumer Chand PW 4 that the purpose of her being brought by Gopal appellant was in fact to get of sum of Rs. 5000/-from him. The deceased had then also told her brother Sumer Chand PW 4 that she would bear all this ill-treatment and that she was only worried about him (i.e. Sumer Chand PW 4). On the following day when Gopal appellant along with the deceased was leaving his in-laws house, he told the deceased that he was "DADA OF HISAR" and his name was Mangal Singh. The deceased at that time told to wife of Sumer Chand PW 4 that her brother should not be sent alone to Hisar as there was danger to his life. From there, Gopal appellant took the deceased to village Chausala where they met Smt. Bhateri, another sister of Sumer Chand, PW 4. Gopal appellant had then told Smt. Bhateri that either he should be given some money or else he would sell the saris and ornaments of the deceased. However, Smt. Bhateri had no money and as such, Gopal appellant left the deceased at the house of her sister Smt. Bhateri and told the deceased to stay there for whole of her life and that he would not come to take her. While staying with her sister, Smt. Bhateri, the deceased wrote a letter dated 29-12-1984, Ex. PE, to her brother Sumer Chand PW 4, that he should not go to Hisar and he should take-care of himself and should not forget to post letter about his well being.

Thereafter, Sumer Chand PW 4 wrote a letter dated 20-12-1984, Ex. PF, to his sister Smt. Bhateri and her husband Jia Lal regarding the misconduct and misbehaviour of the appellant towards the deceased and his in-laws, requesting him (Jia Lal) to come immediately on receipt of this letter with a view to go to the appellant.

On receipt of letter Ex. PF, Jia Lal went to Sumer Chand PW 4 in village Bhuna from where both of them went to the house of the accused situated in Puran Mandi at. Hisar. They told the appellant that they had no capacity to pay a sum of Rs. 5000/- to the appellant and that he should rehabilitate the deceased. However, the appellant turned them out of the house so much so, that they were not even allowed to see the deceased who was then standing on the roof of the house. At that time, the deceased had told her brother Sumer Chand PW 4 and her sister''s husband Jia Lal that the accused would kill her as and when they got an opportunity.

On 24-2-1985 on Tek Chand, a relation of Gopal appellant, went to Sumer Chand PW 4 and assured him that whatever was to happen, had happened and nothing would happen in future. Tek Chand then also assured that nothing would happen to Smt. Sheela deceased.

On 16-3-1985 Om Parkash PW 6 who was during that period running a liquor vend shop on Balsmand Road, Hisar, went to make certain purchases of iron in Purani Mandi where he saw Smt. Sheela deceased standing in the window of the house of the appellant. On seeing him, she called him inside and started weeping. She then told him that she was fed up with her husband and mother-in-law and that she would be done to death at any time. At that time, she was in a perplexed state and asked Om Parkash to inform about her condition to her brother Sumer Chand PW 4. On that very day, he went to village Bhuna and informed Sumer Chand PW 4 of all what he was told by the deceased. Sumer Chand PW 4 then went to his in-laws in village Podka to consult them in the above matter. On the same evening, Sumer Chand PW 4 got a letter from the appellant Gopal through some special messenger that the deceased was on her last breath and that he should reach Civil Hospital, Hisar. On that very day, Om Parkash PW 6 went to Sumer Chand PW 4 at Podka and told him that appellant Gopal had come to them on 17-3-1985 some time in the afternoon and had informed them that Smt. Sheela deceased had taken Ajwain for stomach trouble and had died.

On the night of 16th/17th March, 1985. Smt. Sheela deceased was taken to Civil Hospital, Hisar where she was examined at about 2 pm on 17-3-1985 by Dr. Surinder Singh PW 1, who suspected it to be a case of poisoning. The doctor thereupon sent intimation Ex. PA to the police about the deceased having been brought there and that she was unfit to make a statement. The deceased expired at 5.30 am on 17-3-1985 in which regard, the doctor sent another ruka Ex.PB to the police.

Sumer Chand PW 4 left for Civil Hospital, Hisar, where he reached on 18-3-1985 at 6.30 a.m. On reaching there, he learnt about Smt. Sheela deceased having died at about 5 p.m.

On receipt of intimation Ex. PA and Ex. PB, Head Constable Ishwar PW 9 went to Civil Hospital, Hisar where he held inquest proceedings Ex. PD/2 on the dead body of Smt. Sheela and also recorded the statements of Gopal appellant and his father Om Parkash. He sent the dead body for autopsy under request for post mortem examination Ex. PD/1.

The autopsy on the dead body was performed on 18-3-1985 at 12.45 p.m. by Dr. Mrs. Sushma Madan PW 2 assisted by Dr. D.R. Garg and vide post mortem report, copy of which has been proved as Ex. PD, the doctors observed as under : --

"It was a body of moderately built and nourished female wearing pink coloured saree mustard blouse, white braw, bluish green peticoat wearing four bangles in each wrist, one silver anklet in right feet, silver toe rings on each second toe, Post mortem staining was present on dependent parts at the back portion. Rigor mortis was present in all the four limbs. Mouth and eyes were closed. Froth and blood was coming out from nostrils and mouth, pupils were dilated. There was no mark of ligature on the neck.

On dissection, pleura on left side was adherent to chest well. Right pleura was healthy, Larynx, trachea and lungs were congested and froth was present in the lungs. Stomach contained semi digested food material. Small intestines contained chyle gases and were congested. Large intestines were also congested and contained faecal matter. Bladder was empty. Other organs were healthy. Abdomen was distended."

The cause of death was kept in abeyance subject to the receipt of the report of Chemical Examiner. On receipt of the report of Chemical Examiner Ex. PC, Dr. Satish Khattar PW 8 gave his opinion Ex. PC that the cause of death in this case was on'' account of consumption of organic phospherous poison.

On 6-5-1985, application Ex. PG was received in the office of District Magistrate, Hisar from District Magistrate, Sirsa under his endorsement dated 1-5-1985. The true copy of which, Ex. PG/1 was also sent to Superintendent of Police, Hisar.

On 25-5-1985 on receipt of the application, copy of which is Ex PG/1, SI Devo Dutt PW 8 registered the present case fora offence u/s 306, I.P.C. under formal FIR Ex. PG/3. On 26-5-1985 SI Devi Dutt PW 8 went to Uklana Mandi, where he recorded the statements of PWs Chiranji Lal and Prabhu Dayal. On 27-5-1985 he visisted the place of occurrence, prepared its rough site plan Ex. PJ He arrested Gopal appellant on 27-5-1985 while Smt. Parmeshwari accused on 28-5-1985. After completion of investigation and other formalities, the accused were sent up for trial for the aforesaid offence.

In support of its case, the prosecution examined in all ten witnesses namely Dr. Surinder Singh PW 1, Dr. Mrs. Sushma Madan PW 2, Dr. Satish Khattar PW 3, Sumer Chand PW 4, Smt. Bhola Devi PW 5, Om Parkash PW 6, Kartar Singh PW 7, SI Devi Dutt PW 8, HC Ishwar PW 9 and Ram Kumar SHO PW 10 besides tendering in evidence, the affidavits of Constable Ramesh Chand Ex. PL and HC Rameshwar Dass Ex. PM.

When examined u/s 313, Cr. P.C., the accused denied the allegations of the prosecution. Appellant Gopal pleaded his innocence in the following terms : --

"I was married in 1983. My wife did not conceive. We both had gone for medical check up as to why child was not being conceived. Doctor checked both of us. He found no fault with my wife but told that I was not capable of producing a child. He declared me impotent. My wife started weeping and declared that she cannot become mother throughout the life. I brought her house, I treated her very nicely because I suspected that she might run away with some one else in her attempt to get a child. I got check up from other doctors also but all of them were of the same opinion. However, my wife was very much depressed at thought of becoming a mother and that is why she committed suicide. She had developed pain on the night of 16th and 17th March, 1985. We took her to Civil Hospital at 11.30 night. She was treated there. We kept on giving her the medicines. She was declared dead at 5 a.m. I have nothing more to say."

In defence, the appellant examined two witnesses namely Dr. Kuldip Kumar DW 1 and Smt. Raj Kumari, grand mother of Gopal appellant and mother-in-law of Smt. Parmeshwari as DW 2.

I have heard the learned counsel for the parties and have also gone through the evidence and other material on record.

The main contention raised by the learned counsel for the appellant is that there is no satisfactory evidence led by the prosecution to prove that the appellant had aided or abetted the offence of suicide, admittedly committed by his wife Smt. Sheela deceased. On scanning the evidence, I find substance in this contention raised on behalf of the appellant.

To prove the charge against the appellant, the prosecution has examined Sumer Chand PW 4, Smt. Bhola Devi PW 5 and Om Parkash PW 6. However, on scanning the evidence of these witnesses, it is clear that material improvements have been made by them in their deposition in court over what they had stated before the poilce, during the investigation. Their evidence also lacks corroboration on material points.

In his deposition in court, Sumer Chand PW 4 deposed that they had spent an amount of Rs. 25,000/- or so at the time of marriage of the deceased with the appellant and that after he had written letter Ex. PF to his brother-in-law, Jia Lal, the later had come to him and both of them had then gone to the house of the appellant and told him that they had no means to pay a sum of Rs. 5,000/- to him but the appellant turned them out of the house. All this is an improvement made by him over his version contained in his complaint Ex. PG.

When cross-examined as to the sourse from where an amount of Rs. 25,000/- was spent on the marriage, Sumer Chand PW 4 stated that they had no Bank balance at the time of the marriage; that he had taken an amount of Rs. 5,000/- from his in-laws, Rs. 10,000/- were lying at his house by way of savings, Rs. 4,000/- was taken by him from his commission agent where he was employed as a servant while the remaining articles were given by way of gold belonging to his wife. However, the factum of having borrowed various amount from other sources remains uncorroborated on record in as much as neither any member of the family of his in-laws nor the concerned Commission Agent have been examined in Court to prove the above fact. Even Smt. Bhola Devi PW 5 who is the mother of the deceased did not say a word to corrborate the above part of the testimony of Sumer Chand PW 4. She simply stated that whenever the deceased visited her parents, she used to tell them that both the accused maltreated her and used to taunt he that she was of black complexion and had brought less dowry and that she was fed up with her in-laws. However, the above testimony of Smt. Bhola Devi PW 5 is also an improvement over her statement before the police and as such, cannot be given any credence.

Another piece of evidence to connect the appellant with the crime as per the testimony of Sumer Chand PW 4 is that Gopal appellant had gone to Smt. Bhateri (another sister of Sumer Chand PW 4 and had threatened her that in case, he was not given money, he would sell ornaments and the saris of Srnt. Sheela deceased and the appellant had in fact left Smt. Sheela deceased at her house. Regarding this incident, he (Sumer Chand PW 4) had written a letter to his brother-in-law Jia Lal where upon he and Jia Lal had gone to the house of the appellant to make him understand but the appellant did not treat them well so much so that they were not allowed to meet the deceased who was then present on the roof of the house of her in law and she had told them that she would be killed by the accused. However, the above part of the testimony of Sumer Chand PW 4 again remained uncorroborated on record because neither aforesaid Jia Lal has been examined in Court, though cited as witness by the prosecution, or a word has been stated in this regard by Smt. Bhola Devi PW 5 in her entire testimony. So far as Jia Lal is concerned, he is admittedly the husband of Smt. Bhateri, who in turn is also the sister of Sumer Chand PW 4 and his having not been examined in Court reflects against the fair conduct of the prosecution. As such, it is not safe to rely upon the sole testimony of Sumer Chand PW 4 who is admittedly a close relation of the deceased and thus interested in the prosecution.

Another piece of evidence to prove the guilt of the accused as brought in the testimony of Sumer Chand PW 4 is that on 16-3-1985, Om Parkash PW 6 had gone to the house of the deceased who had then expressed her fear of being killed by her in-laws regarding which Om Parkash PW 6 had informed Sumer Chand PW 4. Although Sumer Chand PW 4 has deposed in court in the above lines and this part of his testimony finds corroboration form the evidence of Om Parkash PW 6 but in the circumstances on record, this evidence also cannot be said to be free from doubt, for the reasons firslty that Om Prakash PW 6 is an interested witness, being a partner in some liquor business with a relation of the complainant and secondly whatever has been deposed by Om Parkash PW 6 regarding the above fact does not find mention in his police statment with which he was duly confronted and thirdly for the reasons that his statement was recorded by the police after about more than 4 1/2 months of the alleged occurrence.

Sumer Chand PW 4 has deposed that on 17-3-1985 at about 6.30 P.M. he had received a letter from the appellant through a special messenger that Smt. Sheela deceased was on her last breath and that he should reach Civil Hospital, Hisar. However, when cross-examined, about the letter in question, Sumer Chand PW 4 stated that he had no preserved the letter so written by Gopal appellant regarding the critical condition of the deceased and her admission in Civil Hospital. But when further cross-examined, he stated that some one travelling in the Bus had delviered that letter to him and that person belonged to the village of the accused. This part of the testimony of Sumer Chand PW 4 again does not appear to eb aboveboard because the contents of the letter allegedly written by the appellant would have certainly gone a long way to corroborate the allegations of the prosecution that the accused had been changing their stand at different stages as to the circumstances in which the condition of the deceased became critical and was removed to the Civil Hospital. The non-production of such a letter which is of very vital nature at least goes to create doubt in the prosecution story.

There is also some substance in the contention of the learned counsel for the appellant that ther is also a delay on the part of the complaint party in reporting the matter to the police and which delay has not been satisfactorily explained by the prosecution. Ex PG is stated to have been recorded by the police on 25-3-1985. According Kartar Singh PW 7. this complaint Ex PG was received in the office of District Magistrate, Hissar on 5-5-1985 from the office of District Magistrate, Sirsa vice endorsement No. 386-M dated 6-5-1985. There is no explanation on record as to why the complainant had sent the complaint, copy of which is Ex. PG, to District Magistrate, Sirsa when as per the consistent stand of the prosecution, the case admittedly related to District Hisar. There is not an iota of evidence on record to explain this anomaly which is certinly one of the circumstances raising suspicion about the prompt lodging of the report with the authorities. No doubt, Sumer Chand PW 4 has deposed that he had been contacting the authorities from the very beginning and that no action was taken by the authorities in that regard but the circumstances on record do create suspicion about the conduct of the complainant party. It is not the case of the complainant that without waiting for the arrival of the complainant party in the Hospital, the accused tried to dispose of the dead body or cremate her. It is an admitted fact on record that at the time of post mortem examination of the deceased, Sumer Chand PW 4 and his other relations were present and at that very time, the doctor had declared it to be a case of poisoning although definite opinion was kept in abeyance subject to the receipt of the report of Chemical Examiner, who ultimately found the death on account of consumption of organic phosphorus poison. Knowing fully well the background in which the deceased was led to commit suicide by the accused and the fact that it was declared to be a suspected case of poisoning, there was no reason for the complainant party to have not moved the police immediately in the matter and in this background, the testimony of Sumer Chand PW 4 that he had complained to the police officer concerned present in the Hospital against the conduct of the accused and that the police officer had refused to move in the matter, does not inspire confidence.

Even assuming that there was no delay on the part of the complainant party to report the matter to the authorities, the circumstances on record taken collectively do create doubt in the truthfulness of allegations of the prosecution for the very reason that the testimony of one witness does not find corroboration from the other coupled with the fact that even in their deposition in Court, they have made material improvement over their version before the police.

The defence plea is that on account of the impotency of the appellant, the deceased used to remain unhappy on the thought that she might not give birth to a child throughout her life. The trial Court rejected the defence plea on two counts, firstly that it was taken for the first time only at the stage of the commencement of the trial and secondly, that there was no satisfactory evidence to prove the factum of impotency of the appellant. In my view, this approach of the trial Court is not correct. Even if the appellant had not taken a specific plea earlier to the commencement of the trial, he is not debarred from taking a particular plea during the trial unless, of course, it is shown that the accused had been taking inconsistenf pleas about his innocence at different stages. It is true that in the present case, the applicability of Section 113A of the Indian Evidence Act would be attracted and the onus would be on the appellant to prove his innocence in that crime, However, this onus can very well be discharged by the accused from the preponderance of evidence and other attending circumstances on record. Even with the application of Section 113A of the Indian Evidence Act, the onus to prove the guilt of the appellant would still be heaviour on the prosecution than upon the appellant to prove his innocence. It we read the evidence of Dr. Kuldip Kumar DW 1, who, under the orders of the trial Court, had medical medically examined the appellant about his impotency, then the plea of the appellant cannot be said to be totally groundless. It would be of advantage to reproduce in verbatim the testimony of Dr. Kuldip Kumar DW 1 as brought in his examination-in-Chief and cross-examination and the same reads as under : --

Examination-in-Chief:

"In pursuance of the Courts order, a Board consisting of myself, Dr. N.K. Kulshershtra and Dr. B.M. Kapoor, examined Gopal accused on 17-4-1986. Report Ex. PD was prepared by us and is signed by me. In our opinion, Gopal accused was capable of doing sexual intercourse. As compared to normal counts of a person, the chances of conception of a person with a lower counts as in the present case would be less.

Cross-examination: By PP for the State.

Impotency is physical incapacity of accomplishing a sexual act, Sterility means inability for procreation of children. If during a night, a person performs sexual acts two or three times, subsequent ejaculation of the semens would be less on that occasion in the second and third attempt. I cannot say. whether the accused had ejaculation before the examination. Normal count of supermatozea is 40 to 60 millions per cc (cubic milimeter). One spermatozea is needed to fertilize one ovum. The accused in the present case could procreate child."

Reading the testimony of Dr. Kuldip Kumar DW 1 as a whole, including the portion underlined above, the possibility of the appellant being incapable in procuring a child be totally ruled out. Even if this plea of the appellant is proved to be false, that does not totally shift the onus of the prosecution to prove the guilt of the appellant by producing evidence of sterling character.

From the circumstances on record, the evidence led by the prosecution cannot be said to be free from doubt and aboveboard, at least of making out a case of benefit of doubt, in favour of the appellant especially when Smt. Parmeshwari co-accused of the appellant) has been acquitted by the trial Court on this very charge and no appeal against her acquittal has been preferred by the State.

In view of my above discussion, I upset the impugned judgment of conviction and the order of sentence and acquit the appellant of the offence charged with. The appellant be set at liberty forthwith, if not required in any other case.

In the result, Criminal Appeal No. 517/SB of 1986 is accepted and Criminal Revision No. 1216 of 1986 fails and the same is accordingly dismissed.