State of Himachal Pradesh vs Sudhir Kumar alias Sonu and Rajinder Singh alias Ghoga

Sanjay Karol, J.—For an offence, which is alleged to have been committed on 8.2.1999, accused were put to trial. In terms of judgment dated 17.4.2003 passed by learned Additional Sessions Judge, Una (H.P.), in Sessions trial No. 56-I-2K titled as State of H.P. vs. Sudhir Kumar and another, the accused stand acquitted of the charged offence.

It is the case of the prosecution that on 9.2.1999 a message was received in the Police Station, Una that a lady had committed suicide by hanging herself at Village Charatgarh. SHO Krishan Singh (PW-16) rushed to the spot. He found that the dead body of a lady lying on the floor of her bedroom. The same had been removed from the fan. Pieces of rope were lying loose near the body. It was identified to be that of Smt. Sharda Devi, who used to reside in the house alongwith her three children. PW-16 found Smt. Nisha Devi (PW-6), Devrani (elder brother�s wife) of the deceased to be present on the spot, who got her statement (Ext.PW-1/A) recorded, which was sent to Police Station, Una, where Nikka Ram (PW-1) registered FIR No.89/2009 (Ext.PW-1/B) dated 9.2.1999. SHO Krishan Singh (PW-16) commenced investigation. On his asking Suresh Kumar (PW-10) took photographs (Ext.P-2 to Ext.P-5). Inquest report (Ext.PW-16/A) and spot map (Ext.PW-16/B) were prepared. Two pieces of rope (Ext.P-1) were taken into possession vide memo (Ext.PW-6/A). Dead body was sent for postmortem. Dr. Gian Inder (PW-5) conducted post-mortem and gave his reports (Ext.PW-5/B and Ext.PW-5/C). Statements of some of the witnesses were recorded by him. Matter was partly investigated by ASI Ranjit Singh (PW-12) who also recorded statements of some of the witnesses. Report of Forensic Laboratory (Ext.PW-5/C) was obtained.

From the statement of Smt. Nisha Devi (PW-6), following facts are deducible:-

(i) Smt. Nisha Devi and Smt. Sharda Devi were sisters-in-law and married to real brothers; (ii) they were living close by and maintaining separate residences; (iii) Though Mohan Lal (PW-14) husband of Smt. Sharda Devi used to reside at Delhi, but, she used to live in the village alongwith her three children; (iv) Few days prior to 8.2.1999, accused visited house of Smt. Sharda Devi. They misbehaved, but on asking of Smt. Sharda Devi went away, which fact Smt. Sharda Devi herself disclosed to the complainant i.e. PW-6; (v) Also on 8.2.1999 during the day, accused visited house of Smt. Sharda Devi and when she scolded them they went away; (vi) However, same day in the evening they again came on a scooter and entered the bedroom of Smt. Sharda Devi, where complainant was also present. That there accused started abusing Smt. Sharda Devi and also used filthy language. They were insisting upon staying in the house of Smt. Sharda Devi during the night. In spite of repeated requests made by Smt. Sharda Devi, accused did not leave. This resulted in heated arguments on which neighbours got together. Accused also quarrelled with the neighbours; (vii) Later on Ram Kumar father of accused Sonu came and took away both the accused persons; (viii) Smt. Sharda Devi told the complainant that she would lodge a complaint with the police. In the morning of 9.2.1999 complainant went for her duty at about 10 a.m. by when children of Smt. Sharda Devi had already left for school; (ix) Same day at about 1 p.m. when complainant returned from duty, Mohit son of Smt. Sharda Devi came home from school to take his meals. At that time he saw his mother hanging from the fan in her bedroom. He immediately called the complainant, who also saw Smt. Sharda Devi hanging from the fan with a rope; (x) Thinking that Smt. Sharda Devi was alive, complainant cut the rope and laid her body on the ground but she was found to be dead; (xi) Complainant immediately informed the neighbours who assembled at the spot. (xii) complainant suspected that since accused used to visit the house of Smt. Sharda Devi without any sufficient cause and also troubling her, Smt. Sharda Devi felt humiliated and as such she committed suicide.

With the completion of investigation, challan was presented in the Court for trial. Accused were charged for having committed offences punishable u/s 306 read with Section 34, IPC.

In order to prove its case prosecution examined as many as 16 witnesses and statements of the accused u/s 313, Cr.P.C. were recorded in which accused Sudhir Kumar alias Sonu took the following defence:-

Because they belong to village of complainant and have deposed falsely in order to implicate us and we belong to other village. However, my niece Sharda is married at village Charatgarh and her house is adjoining to the house of deceased.

Accused Rajinder Singh alias Ghoga took the following defence:-

One the date of occurrence I accompanied Sudhir Kumar to village Charatgarh to the house of my maternal grand-father and on the way we were stopped in the house of Sharda cousin of Sudhir Kumar and have been falsely implicated in this case.

Court below acquitted the accused, hence the present appeal.

Having minutely examined the testimonies of prosecution witnesses, we find that prosecution has not been able to establish, beyond reasonable doubt, by leading clear, cogent, convincing and reliable piece of evidence that in furtherance of common intention, accused abetted Smt. Sharda Devi to commit suicide.

To us the very genesis of the prosecution case appears to be doubtful in nature if not false.

It has come in the testimony of Smt. Nisha Devi (PW-6) and Munish Kumar (PW-13) that accused left the house of Smt. Sharda Devi at about 8. 8.30 p.m. Thereafter she took meals with her children and slept in her house. Following morning, i.e. 9.2.1999 everything was normal. Smt. Sharda Devi cooked the meals, which were taken by her children. Thereafter children left for school and she remained at home. Smt. Nisha Devi, who was residing separately and also maintaining a separate kitchen did not see anything unusual in the house of the Smt. Sharda Devi. No abnormal or unusual behaviour of Smt. Sharda Devi was noticed. In fact PW-13 states that his maternal uncle i.e. Kaku alias Ashwani had also come to their house in the morning to collect milk and certain talks took place between his mother and him. What talks took place is not known. Smt. Nisha Devi (PW-6) went for duty and returned only at about one o�clock. It was around this time PW-13 came home to have his lunch. He found his mother hanging from the fan in the bedroom of the house. Now Kaku has not been examined in Court. Since it stands proved that after the incident of 8.2.1999, everything was normal in the house and the entire family had slept well after taking meals, in a normal routine and manner, then in these circumstances it cannot be said that accused had promoted/abetted Smt. Sharda Devi to commit suicide. Incidentally it is not the case of prosecution that accused persons had levelled any personal allegations of unchastity or character of Smt. Sharda Devi. With regard to the use of filthy language and abuses, we find testimonies of prosecution witnesses not to inspire confidence, if not false. They are full of embellishments and improvements. There was a long gap between the incident and recovery of body. It is not the prosecution case that the accused ever contacted Smt. Sharda Devi. All talks took place in the presence of adult members of the family or co-villagers. It has come in evidence that accused had visited the house of the deceased to collect money in relation to a commercial transaction which was bargained by Smt. Sharda Devi. Thus the genesis of the prosecution story appears to be not true.

That apart, we also find that in the instant case both material witnesses, i.e. Smt. Nisha Devi and her husband Subash Chand (PW-9), who in fact is elder brother of husband of the deceased, have not supported the prosecution case at all. Also independent witnesses Partap Chand (PW-8) Ward Punch and Vandana (PW-11) have turned hostile and not supported the prosecution at all. They were cross-examined by the Public prosecutor, nothing substantial could come out in their testimonies in support of the prosecution case.

It has come in the evidence of PW-1 and PW-16 that even though FIR (Ext.PW-1/B) was registered by the police on 9.2.1999 at 6.20 p.m., yet copy thereof was not sent to the concerned Magistrate until the following day. Police has not explained the reason for not having done so promptly. In homicidal cases promptness is required. This fact by itself would not make the prosecution case to be fatal but then it certainly casts a doubt with regard to the manner in which the investigation was handled by the police.

It has come in the testimonies of PW-7, PW-8 and PW-9 that Smt. Veena Devi and deceased Smt. Sharda Devi had sold their buffalo to father of the accused. However, such transaction fell through and though buffalo was returned by father of the accused, yet sale consideration was retained and not given back. PW-7, PW-8 and PW-9 have not supported the prosecution on other aspects and it can be said that on this aspect also their testimonies cannot be relied as they have truthfully not deposed before the Court but the fact of the matter is that their version stand amply corroborated by the uncontroverted testimony of Shri Kavi Dutt (PW15), which is reproduced in toto as under:-

Stated that Smt. Sharda Devi was our neighbourer. On 8.2.99 at about 9 p.m. I heard noise coming from the house of deceased and went there and other people were also present there. I saw the accused person present in the court today there. They were claiming that they were to take some money from deceased and I called the Up Pardhan Gesh Dutt, and Partap Ward Member. On the following day we went to Kalka with family and returned in the late evening at about 10 p.m. We came to know after our arrival about the suicide of the deceased.

..xx xxxx xxxxx�

My statement was not recorded by the police. Ram Kumar the father of accused Sudhir Kumar had also come during the night of 8th Feb. I do not know if Ram Kumar had told the accused persons that thensforth (sic. henceforth) they will not ask money and he himself will recover the same. Volunteered that I was not present before Panchayat officials.

Husband of deceased Mohan Lal (PW-14) simply states that he has no personal knowledge of the incident and came to know about the same only through ladies of the house who had gathered in the village. Surprisingly he does not remember name of such ladies. His testimony is thus of not much use.

Apart from the fact that Smt. Nisha Devi (PW-6) has not supported the prosecution story on material aspects, we find that even otherwise there are improvements, embellishment and contradiction in her testimony. In Court she has given a different version which is different than the one initially given to the police. In Court, she does not mention about incident which took place prior to 8.2.1999. In Court, she states that she asked the accused to go away, though to the police she said that the deceased herself had asked them to leave. She mentions about the presence of Pradhan Sat Pal and Jolly at the time when the accused came in the evening of 8.2.1999. She also refers to number of villagers who had assembled at the spot. Now none of these persons have been examined in Court. Presence of such persons is also not mentioned in her statement. Police has also not associated any of the neighbours. She specifically admits that accused did not indulge in any indecent talks or behaved as such with the deceased. She simply states that she suspected that the accused to have threatened Smt. Sharda Devi which promoted her to commit suicide. Now suspicion is not a substitute for proof. Significantly this witness states that she narrated the incident of 8.2.1999 to her husband, yet it has not come on record what steps he took in the matter.

Partap Chand (PW-8) is the Ward Member of the concerned Panchayat. He states that Gesh Kumar (PW-7) had already arrived at the spot prior to his arrival which version stands materially contradicted by PW-7 himself. What really transpired at the spot has not been established on record. These witnesses also do not corroborate the version given by PW-6 to the police.

Most importantly Munish Kumar (PW-13) states that when quarrel took place Satpal and Kavi Dutt were present at the spot and thereafter Balram came. He has made improvements in Court by stating that accused had consumed alcohol, which in any event is not the case of the prosecution. Now Kavi Dutt (PW-15) does not narrate the version which prosecution wants us to believe. Balram and Satpal have not been examined in Court. We have also seen that Kaku has not been examined. It has also come in the investigation, as is so stated by PW-16, that none had obstructed/prevented the deceased for reporting the matter to the police.

Significantly it has come on record that there are houses of relatives of the accused persons in the locality. Hence there is nothing unusual about their presence in the locality at the relevant time. They may have also come to collect the money and perhaps indulged into a quarrel but then this by itself cannot be a reason to commit suicide. There must have been a very strong compulsion for the deceased to have committed suicide which unfortunately has not been explained and established by the prosecution. According to the prosecution, accused had left house of the deceased at 8.30 � 9 p.m. It is not the case of the prosecution that the accused had ever attempted to contact the deceased thereafter. What transpired between the night of 8.2.1999 and 1 p.m. the following morning, i.e. 9.2.1999 has not been explained by the prosecution. For them everything appeared to be normal.

As such, prosecution has not been able to establish the guilt of the accused.

The accused have the advantage of having been acquitted by the Court below. Keeping in view the ratio of law laid down in Md. Ankoos and Others Vs. The Public Prosecutor, High Court of A.P., , it cannot be said that the Court below has not correctly appreciated the evidence on record or that acquittal of the accused has resulted into travesty of justice. No ground for interference is called for. The present appeal is dismissed. Bail bonds, if any, furnished by the accused are discharged.