State of Himachal Pradesh vs Sunil Kumar

Sanjay Karol, J.—Assailing the judgment dated 17.09.2007, passed by learned Sessions Judge, Shimla, H.P., in Sessions Trial No. 8-S/7 of 2007, titled as State Versus Sunil Kumar, State has filed the present appeal under the provisions of Section 378 of the Code of Criminal Procedure, 1973.

It is the case of prosecution that in the year 2003, accused Sunil Kumar got married to deceased Sita Devi and within one year differences arose between them. Deceased filed a criminal complaint dated 30.03.2005 (Ex. P.W.5/A) with the Superintendent of Police, Shimla, alleging cruelties meted out by the accused to her. Superintendent of Police, did take some action, whereafter deceased started living with her father Sh. Shobia Ram (P.W.9), away from the company of the accused who would often visit her. On 20.06.2006, deceased committed suicide by hanging herself in the house of her father. Incident of death was first reported at Police Post, Mashobra and entry pertaining to which was recorded by Constable Bhupinder Singh (P.W.4). Police Station, Dhalli, was informed and after recording entry in the Police Station (Ex. P.W.18/A), police rushed to the spot. SI Raj Kumar (P.W.18), Additional SHO, Police Station, Dhalli, prepared inquest report (Ex. P.W.1/B) and sent the dead body for postmortem. Incriminating material i.e. rope (Ex. P-1) and torch (Ex. P-2) was also sealed and seized vide memo (Ex. P.W.11/A). Postmortem of the dead body was conducted by Dr. Piyush Kapila (P.W.1), who issued postmortem report (Ex. P.W.1/C). According to the doctor, deceased died as a result of asphyxia secondary ante mortem hanging. FIR No. 127 of 2006, dated 20.06.2006 (Ex. P.W.7/B), under the provisions of Section 306 IPC was registered at Police Station, Dhalli, against the accused. Accused was arrested. Police took into possession record pertaining to the complaint made by the deceased with the Superintendent of Police, Shimla and Women Commission. Investigation revealed complicity of the accused in the alleged crime, hence Challan was presented in the Court for trial.

Accused was charged for having committed an offence punishable under the provisions of Section 306 of the Indian Penal Code, to which he did not plead guilty and claimed trial.

In order to establish its case, in all, prosecution examined as many as eighteen witnesses. Statement of the accused under Section 313 of the Code of Criminal Procedure was also recorded, in which he took plea of innocence and false implication.

Trial Court, after appreciating the testimony of prosecution witnesses acquitted the accused. Hence the present appeal.

We have heard M/s. B.S. Parmar and V.S. Chauhan, learned Addl. AGs., assisted by M/s. Vikram Thakur and Puneet Rajta, learned Deputy Advocate Generals on behalf of the State as also Mr. Rajan Kahol, Advocate, on behalf of the accused. We have also minutely examined the testimonies of the witnesses and other documentary evidence so placed on record by the prosecution. Having done so, we are of the considered view that no case for interference is made out at all. We find that the judgment rendered by the trial Court is based on complete, correct and proper appreciation of evidence (documentary and ocular) so placed on record. There is neither any illegality/infirmity nor any perversity with the same, resulting into miscarriage of justice.

It is a settled principle of law that acquittal leads to presumption of innocence in favour of an accused. To dislodge the same, onus heavily lies upon the prosecution. Having considered the material on record, we are of the considered view that prosecution has failed to establish the essential ingredients so as to constitute the charged offence.

In Prandas Vs. The State, , Constitution Bench of the apex Court, has held as under:

"(6) It must be observed at the very outset that we cannot support the view which has been expressed in several cases that the High Court has no power under S. 417, Criminal P.c., to reverse a judgment of acquittal, unless the judgment is perverse or the subordinate Court has in some way or other misdirected itself so as to produce a miscarriage of justice. In our opinion, the true position in regard to the jurisdiction of the High Court under S. 417, Criminal P.c. in an appeal from an order of acquittal has been stated in - AIR 1934 227 (Privy Council), in these words:

"Sections 417, 418 and 423 of the Code give to the High Court full power to review at large the evidence upon which the order of acquittal was founded, and to reach the conclusion that upon that evidence the order of acquittal should be reversed. No limitation should be placed upon that power, unless it be found expressly stated in the Code. But in exercising the power conferred by the Code and before reaching its conclusions upon fact, the High Court should and will always give proper weight and consideration to such matters as (1) the views of the trial Judge as to the credibility of the witnesses, (2) the presumption of innocence in favour of the accused, a presumption certainly not weakened by the fact that he has been acquitted at his trial, (3) the right of the accused to the benefit of any doubt, and (4) the slowness of an appellate Court in disturbing a finding of fact arrived at by a Judge who had the advantage of seeing the witnesses. To state this, however, is only to say that the High Court in its conduct of the appeal should and will act in accordance with rules and principles well known and recognized in the administration of justice."

That deceased was married to the accused in the year 2003, is not in dispute. In any event, such fact stands proved by Rajinder Sharma (P.W.2), Secretary Gram Panchayat, Galod, who issued the marriage certificate (Ex. P.W.2/A).

That deceased committed suicide by hanging herself in the house of her father, is also not in dispute.

Dr.Piyush Kapila (P.W.1), who proved the postmortem report (Ex. P.W.1/C), has deposed that "ligature mark was consisting with ligature material. Gray nylon rope on the dissection of the neck. The fascia was crushed. Neck muscles beneath the ligature mark was compressed." According to him, deceased died as a result of asphyxia secondary to ante mortem hanging.

According to the prosecution, as is so deposed by Hardev Singh (P.W.5), Sita Devi (deceased) made complaint dated 30.03.2005 (Ex. P.W.5/A) with the statutory authorities. Testimony of this witness reveals that the matter was investigated but despite efforts, since neither the complainant nor the respondent therein was traceable, the matter was closed.

Ms. Radhika Sood (P.W.6), Clerk of H.P. State Commission for women, has proved on record correspondences made by Himachal Pradesh State Commission for Women, pertaining to various complaints allegedly made by the deceased against the accused. All these complaints pertain to the year 2005. Now what is the outcome of these complaints, has not been conclusively proved on record. Though witness also admits that even Sunil Kumar (accused) had filed applications (Ex. DA, Ex. DB and Ex. DC). It appears that there were allegations and counter allegations made by the parties. All this was in the year 2005. It appears the parties did not seriously pursue the complaints to any logical end. On record there is no document of subsequent allegations of cruelty.

Case of the prosecution primarily rests upon the testimonies of relatives i.e. father Shobia Ram (P.W.9), mother Kamla Devi (P.W.10), sister-in-law Smt. Lalita (P.W.12), brother Ram Lal (P.W.14), Gita Devi (P.W.13), as also hostile witnesses, neighbour Smt. Shakuntla Devi (P.W.3) and Ms. Krishna Devi (P.W.15).

Shobia Ram (P.W.9) states that accused used to treat the deceased with cruelty, complaints pertaining to which were filed before various statutory authorities. Though deceased lived separately yet, even during pendency of complaints, accused would still visit her. In the year 2006, though deceased did stay with the accused at Nalagarh, but returned after ten days. On 19.06.2006, accused wanted to speak with the deceased on telephone. At that time, she was in tension. Again on 20.06.2006, accused wanted to speak with the deceased on telephone. However, when he went to the "Obra" to awake her up, he found her dead. Except for bald allegation that accused used to beat the deceased, there is nothing in his testimony from which it can be inferred that accused abetted the deceased to commit suicide. Allegations of beating are much prior to filing of the complaint before the Women Commission, which was in the year 2005. Why did the deceased return from Nalagarh, within ten days, has not been explained. All that he states is that deceased was in tension on 19.06.2006 but does not specifically state that same day accused had spoken with the deceased on telephone. Perusal of his testimony further reveals that love marriage was not acceptable to him. Significantly witness admits that he never lodged any complaint against the accused, with respect to any of alleged quarrels or beatings. He also admits that deceased was not subjected to such cruelties in his presence. Hence his testimony does not help the prosecution.

Testimony of Smt. Kamla Devi (P.W.10), mother of deceased, also does not advance the case of prosecution any further. Though initially she does state that deceased committed suicide for the reason that accused used to physically assault her, but we find such statement to be absolutely vague and unspecific with regard to time, place and manner. That apart, witness admits that deceased being mentally upset, was administered treatment of ''Opra'' (sorcery). Most importantly, this witness admits that "deceased Sita Devi went to Nalagarh about ten fifteen days before the occurrence. It is correct that during her stay at Nalagarh, I talked to her on the telephone and told her that her brother Ram Lal has been blessed with a son and called her to our house. It is correct that when she came to our house she brought gifts and sweets for children. It is correct that she was happy and took her meals etc." Both the witnesses do not state that at Nalagarh deceased was subjected to cruelty which prompted her to return.

When we peruse the testimony of Smt. Lalita (P.W.12), we find that deceased left her maternal house on account of maltreatment. But then, she also does not assign any reason or cause sufficient enough for the deceased to have committed suicide. In fact, from her testimony as also from the testimony of Smt. Kamla Devi (P.W.10), purpose of visit of accused to Nalagarh, was to seek employment, which perhaps he did not get. Significantly witness admits that even on 19.06.2006, deceased had not disclosed reason of her tension.

Smt. Gita Devi (P.W.13), sister of the deceased, states that she was informed by the deceased that if accused refused to give her divorce she would commit suicide. She states that also accused used to torture her. Now this version of hers has come on record for the first time. Nonetheless, even this witness does not state immediate cause of provocation. That talk of divorce ever took place between the parties, or it was refused by the accused, has not come on record except for her bald statement, which also is vague and unspecific.

Ram Lal (P.W.14), real brother of the deceased, only states that both the accused and the deceased would quarrel with each other. Even he never lodged any complaint with any of the authorities.

We find witnesses Smt. Shakuntla Devi (P.W.3) and Ms. Krishna Devi (P.W.15) not to have supported the prosecution case at all and despite their extensive cross-examination, nothing fruitful could be elicited from their testimonies.

Conjoint reading of testimonies of family members of the deceased would only reveal absence of circumstances or material facts, from which conduct of abetment by the accused, coercing the deceased to commit an act of suicide can be inferred. Whether accused intentionally abetted the deceased to commit suicide has not been proved on record.

It appears that though initially parties were happy with their marriage, solemnized against wishes of parents of the deceased, but later on, differences cropped up and both kept on quarrelling with each other. Complaints filed by the deceased could not be verified and as such were closed. Relevant prosecution witnesses did not lodge any complaint or make out any grievance, about the alleged acts of beatings. In any event, allegations are vague and unspecific with respect to place, time or manner. There is no material evidence on record from which it can be deduced that deceased was abetted by the accused to take away her life.

It appears that victim was hypersensitive to ordinary petulance, discord and differences in domestic life. She had left the company of her husband and started residing with her father. In vain she went to search for a job. She was also treated for sorcery. On record there is no immediate cause of provocation on the part of accused. Victim was slightly unwell and undergoing treatment. Trial Court, in our considered view, rightly held the presumption, under Section 113-A of the Indian Evidence Act, 1872, not to be applicable in the present case.

In Ramesh Kumar Vs. State of Chhattisgarh, , the apex Court has held as under:--

"12. This provision was introduced by Criminal law (second) Amendment Act, 1983 with effect from 26-12-1983 to meet a social demand to resolve difficulty of proof where helpless married women were eliminated by being forced to commit suicide by the husband or in-laws and incriminating evidence was usually available within the four-corners of the matrimonial home and hence was not available to any one outside the occupants of the house. However still it cannot be lost sight of that the presumption is intended to operate against the accused in the field of criminal law. before the presumption may be raised, the foundation thereof must exist. A bare reading of Section 113A shows that to attract applicability of Section 113A, it must be shown that (i) the woman has committed suicide, (ii) such suicide has been committed within a period of seven years from the date of her marriage, (iii) the husband or his relatives, who are charged had subjected her to cruelty. On existence and availability of the abovesaid circumstances, the Court may presume that such suicide had been abetted by her husband or by such relatives of her husband. The Parliament has chosen to sound a note of caution. Firstly the presumption is not mandatory; it is only permissive as the employment of expression "may presume" suggests. Secondly, the existence and availability of the abovesaid three circumstances shall not, like a formula, enable the presumption being drawn; before the presumption may be drawn the Court shall have to have regard to ''all the other circumstances of the Case''. A consideration of all the other circumstances of the case may strengthen the presumption or may dictate the conscience of the Court to abstain from drawing the presumption. The expression - ''The other circumstances of the case'' used in Section 113A suggests the need to reach a cause and effect relationship between the cruelty and the suicide for the purpose of raising a presumption. Last but not the least the presumption is not an irrefutable one. in spite of a presumption having been raised the evidence adduced in defence or the facts and circumstances otherwise available on record may destroy the presumption. The phrase ''May presume'' used in Section 113A is defined in Section 4 of the Evidence Act, which says-''whenever it is provided by this Act that Court may presume a fact, it may either regard such fact as proved, unless and until it is disproved or may call for proof of it."

Also there is no suicide note recovered from the spot. The death took place in the house of father of the deceased situated in District Shimla, whereas, accused resided at Nalagharh, in District Solan a place, distant from Shimla. It is also pertinent to point out that there are no allegations of dowry demand.

To our mind, prosecution has not been able to establish, beyond reasonable doubt, by leading clear, cogent, convincing and reliable piece of evidence so as to prove that suicide was abetted by the accused.

The Court below, in our considered view, has correctly and completely appreciated the evidence so placed on record by the prosecution. It cannot be said that the judgment of trial Court is perverse, illegal, erroneous or based on incorrect and incomplete appreciation of material on record, resulting into miscarriage of justice.

The accused has had the advantage of having been acquitted by the Court below. Keeping in view the ratio of law laid down by the Apex Court in Md. Ankoos and Others Vs. The Public Prosecutor, High Court of A.P., , since it cannot be said that trial Court has not correctly appreciated the evidence on record or that acquittal of the accused has resulted into travesty of justice, no interference is warranted in the instant case.

For all the aforesaid reasons, present appeal, being devoid of merit, is dismissed, so also the pending application(s), if any. Bail bonds furnished by the accused are discharged. Record of the trial Court be immediately sent back.