State of H.P. vs Vijay Kumar and Smt. Kamla Devi

Deepak Gupta, J.—This appeal by the State is directed against the judgment dated 29.10.2003 passed by the learned Additional Sessions Judge, Una whereby he acquitted the accused of having committed offences punishable under Sections 498A, 306 read with Section 34 of the Indian Penal Code. The admitted facts are that deceased Asha Devi daughter of Sandhya Dass and sister of PW-1 Complainant Balram Singh was married to accused Vijay Kumar in December, 1998. It is alleged that soon after the marriage Vijay Kumar and his mother Kamla Devi started maltreating the deceased Smt. Asha Devi who was suffering from some abdominal problem. It is alleged that she was taunted and told that she had brought miseries to the family with her physical ailments. It is also alleged that accused Kamla Devi used to taunt her by saying ''khud kinare lag ja ya hame kinare lagane de'' meaning that either she should commit suicide or they would kill her. This continuous maltreatment of Asha Devi prompted her to leave her husband''s house and she went to her parental house in the month of January, 2001. On 9th February, 2001 while she was residing at her parental house she consumed aluminium phosphide. She was noticed by her sister-in-law Meena Kumari who took her to Hospital at Daulatpur where she was attended upon by Doctor Ashish Lekhi who informed the police at Daulatpur. Thereafter, police arrived at the Hospital after recording the daily diary rapat Ext.PW-4/A.

ASI Jagdish Ram, PW-4, filed an application Ext.PW�3/A seeking the opinion of PW-3 Dr. Ashish Lekhi as to whether Asha Devi was fit to make a statement. The Doctor opined that she was in a fit condition to make a statement and thereafter the statement of Asha Devi Ext.PW-3/C was recorded in the presence of the doctor who also put an endorsement thereon which is Ext.PW-3/D. The statement was sent to the police but unfortunately Asha Devi did not survive and expired the same day. Post mortem was conducted on the body of Asha Devi and as per this post mortem report Ext. PX and the report of the Chemical Analyst Ext.PW-10/A it was found that the deceased died due to poisoning.

FIR Ext.PW-6/A was recorded on 9.2.2001 and the matter was investigated. After investigation the accused were charged with having treated the deceased with cruelty forcing her to commit suicide. After trial, the accused have been acquitted. Hence, this appeal by the State.

The prosecution case is based on the dying declaration of the deceased Ext.PW-3/C and a letter purportedly written by her which is Ext.PW-1/A. We shall first deal with the letter Ext.PW-1/A. This letter was purportedly written by the deceased to her father in which she had only stated that she was not at fault and she is as good a person as any other person. According to her, she had nothing to do with her illness but ''they'' (probably hinting at the in-laws) used to taunt her that she was ill from before and she had spoiled their house. This way they used to taunt her. In this letter it is stated that this was the reason to leave her father (probably meaning that she wanted to commit suicide). In this letter though there is a vague indication that taunts were being held out by the in-laws, it is not clear whether it was the husband, the mother-in-law, father-in-law, brother-in-law or sister-in-law who were giving taunts to the deceased. Even the taunts are not of such a nature that it can be said that this amounted to cruelty of the type envisaged in Section 498A or would be of type which would compel the deceased to commit suicide.

Another disturbing aspect in regard to this document Ext.PW-1/A is that according to PW-1 Balram Singh, this letter was produced by him and handed over by him to one Indu Bala daughter of Om Parkash and thereafter was taken into possession vide memo Ext.PW-1/B. Indu Bala has not been examined. A perusal of the document Ext.PW�1/B shows that this document was seized by the police in the presence of Indu Bala and PW-5 Gujjar Singh. However, according to PW-5 Gujjar Singh, this document was produced by the family of Asha Devi and taken into possession by the police. He further states that by the time he arrived at the house the police was already present and letter Ext.PW-1/A was already with the police. Therefore, he is not actually a witness to the recovery of this document. Indu Bala was not examined. Therefore, the recovery of the document was not proved.

Coming to the so called dying declaration, in this also the deceased had stated that her husband and her mother-in-law used to abuse her and tell her that they were tired of her illness and that she should set the two of them free (hum dono ko ek kinare laga de). She had come to her parental house from her in-laws house about one month earlier. Now fed up with the taunts of her husband and mother-in-law she had committed suicide by consuming two pills of insecticide.

This dying declaration also does not in any way help the prosecution. Even if this dying declaration is accepted at its face value, all that can be said is that the behaviour of the husband and mother-in-law was insensitive but it cannot be said that they acted in a manner so cruel that she was compelled to commit suicide. Furthermore, the dying declaration itself is not totally free from doubt. PW-3 is the doctor who had witnessed the dying declaration. His certificate is that this statement was given in his presence by Smt. Asha Devi. In Court though he has stated that statement was made by Asha Devi in his presence but he has not said a word about what was actually said by Asha Devi. In cross examination he admitted that by the time the deceased was brought to hospital the poison was already absorbed in her body. He also admits that the blood pressure of Asha Devi was un-recordable. This clearly indicates that the blood pressure was so low that it could not be recorded. Once the blood pressure itself was un-recordable, it is not understood how the doctor opined that the patient was in a fit condition to give her statement. In such a condition the patient at best would be in a semi conscious or comatose state. The deceased was accompanied by her parents and therefore at that time may have made a statement as suggested to her by her family members. It would be highly unreliable to rely only on this statement to come to the conclusion that she was treated with cruelty.

Another important aspect is that she was staying in her parental house for 25 days. The taunts, if any, were given to her about a month earlier. There is nothing on record as to what happened during these 25 days and what was immediate provocation or cause for her to commit suicide. Keeping in view all the aforesaid factors, we are of the considered view that the learned trial Court was fully justified in acquitting the accused. We find not merit in the appeal which is dismissed. Bail bonds, if any, furnished by the accused are ordered to be discharged.