State Of H.P. vs Kashmir Singh & Others

Vivek Singh Thakur, J

State of Himachal Pradesh has filed this appeal against acquittal of respondents vide judgment dated 26.6.2014 passed by Additional Sessions Judge (II), Kangra at Dharamshala, District Kangra, H.P. in RBT No. 4-G/VII/2013/09, titled as State of H.P. State Kashmir Singh and others, in case FIR No. 66/08 dated 3.5.2008, registered in Police Station Jawalamukhi under Sections 498-A, 306 read with Section 34 of the Indian Penal Code.

Investigating Agency was set in motion on receiving a telephonic message from Medical Officer, Civil Health Center (CHC), Jawalamukhi at 5:15 A.M. on 3.5.2008, recorded in GD entry No. 3(A), Ex. PW-4/A, informing that a lady, who had consumed poison was brought to CHC, had expired.

On receiving aforesaid information, PW-11 I.O. ASI Dev Raj alongwith HHC Surinder Singh, HHC Madan Lal, Constable Roop Singh and Lady Constable Subh Lata left the Police Station to CHC Jawalamukhi. Thereafter PW-11 I.O. ASI Dev Raj prepared inquest report under Section 174 of the Cr.P.C., clicked photographs of dead body Ex. PW-11/A to Ex. PW-11/D and submitted application Ex. PA to Medical Officer Civil Hospital Dehra for conducting post mortem of deceased Promila alias Babli and obtained post mortem report Ex. PB.

Thereafter Investigating Officer visited village Panjihara (in-laws village of deceased Promila) at about 3:30 P.M. and thereafter he recorded statement of Kunta Devi Ex. PW-1/A and after his endorsement Ex. PW-1/F thereon, IO sent rukka to Police Station Jawalamukhi through Constable Roop Lal (neither cited nor examined as a witness), on the basis of which FIR Ex. PW-1/B was registered at 9:30 P.M.

PW-11 ASI Dev Raj prepared site plan Ex. PW-11/G on spot on the same day and took possession of shirt Ex. P-5, salwar Ex. P-6 and dupatta Ex. P-7, stated to be worn by deceased at the time of incident and these clothes were put in a parcel Ex. P-4, which was sealed with seal "D" and seal sample impression was taken on a piece of cloth as Ex. PW-11/H.

On 5.5.2008 one packet of Aluminum Phosphorous (Salfas), (Ex. P-1) which was half burnt was also taken in possession after putting it in a plastic bottle (Ex. P-2), vide memo Ex. PW-2/A, and these articles were put in a parcel and were sealed with seal impression "R" and sample seal whereof was taken on separate piece of cloth Ex. PW-11/J. A compromise mark-X produced by parents of deceased was also taken into possession and respondents-accused were arrested.

During postmortem, viscera, i.e. part of stomach, part of spleen and kidney and part of small and large intestine were also handed over by the doctor to the Police. The clothes taken into possession and aforesaid viscera received from the Medical Officer alongwith sample of preservative and blood stained clothes of deceased were taken into possession, whereafter parcel was deposited by the Investigating Officer with PW-6 HC Paramjeet Singh MHC, who in turn sent the same to chemical analysis to State Forensic Science Laboratory, Junga through PW-8 Constable Ashwani Kumar, who after depositing the aforesaid articles with State Forensic Science Laboratory, Junga handed over the receipt to PW-6.

Later on report of chemical analysis Ex. PW-7/A was received.

Thereafter PW-7 Inspector Manoj Kumar prepared the challan and presented the same in the Court of concerned Magistrate, who committed the same to Sessions Court.

On the basis of material on record on prima facie consideration thereof, charge under Section 498A, 306 read with Section 34 of the IPC was framed against the respondents-accused. For not pleading guilty, respondents-accused were subjected to trial. After assessing and evaluating the evidence on record, respondents-accused have been acquitted of the charges by the Trial Court.

Prosecution, in its list of witnesses, had cited seventeen witnesses, out of them one Beli Ram, witness to memo Ex. PW-5/A, taking possession of clothes of deceased, had expired. Link witnesses Amar Singh and Krishan Chand regarding the fact of ill-treatment to deceased, were given up. Similarly Roshan Lal, witness to the memo Ex. PW-2/A, regarding recovery of packet of Aluminum Phosphorous (Salfas), was given up. ASI Dev Raj, who partially investigated the matter, was also given up. Postmortem was conducted by Doctor Hemender Mahajan and he had also given the final opinion about the cause of death, was not cited as a witness. One Doctor Mohinder Mahajan was cited as a witness, but he was not examined. However, postmortem report and final opinion of Medical Officer thereon, was not disputed, rather admitted by and on behalf of respondents-accused.

Rukka was sent from village Panjihara to Police Station Jawalamukhi through Constable Roop Singh. He was neither cited as witness nor examined in the Court. Memo Ex. PW-2/A with regard to recovery of one packet of Aluminum Phosphorous (Salfas) from PW-2 Yashodha Devi was witnessed by Roshan Lal and Sunil Rana. Roshan Lal was cited as a witness, but given up.

PW-2 Yashoda Devi is wife of respondent-accused No. 2 Sanjay Kumar. She had produced packet of Aluminum Phosphorous (Salfas) Ex. P-1, which was taken into possession vide memo Ex. PW-2/A. In her statement, she has proved the production of alleged half burnt packet of Aluminum Phosphorous (Salfas). In her cross-examination she has stated that there were 8-10 houses adjacent to their house and that it was correct that no demand was ever made by the accused person at the time of her marriage or thereafter and their family was joint. She has also admitted that when deceased started vomiting on the date of alleged incident, accused persons immediately took her to Civil Hospital, Jawalamukhi.

PW-4 Constable Manohar Lal remained posted as CIPA operator in Police Station Jawalamukhi from 2005 to 2008. He has proved on record GD entry No. 3A dated 3.5.2008 by producing copy thereof Ex. PW-4/A, which contains information about death of deceased Promila and departure of Police Party to Civil Hospital. His statement has not been disputed.

PW-5 HHC Jaspal Parmar, who has been examined as a witness to prove taking of possession of clothes of deceased from her in-laws house vide memo Ex. PW-5/A.

PW-6 HC Paramjeet Singh has deposed about the receipt of parcels of visra, clothes, Aluminum Phosphorous (Salfas) and another parcel of clothes of deceased and sending all these parcels to State Forensic Science Laboratory through PW-8 Constable Ashwani Kumar. In cross-examination he has admitted that his statement was not recorded by the Investigating Officer in this case and he was deposing for the first time in the Court. Similarly, PW-8 Constable Ashwani Kumar has also stated in his cross-examination that his statement was also not recorded by the Investigating Officer and he was deposing in the Court for the first time, however, the Investigating Officer in his examination-in-chief has re-iterated that he had recorded statements of these witnesses during investigation.

PW-8 Constable Ashwani Kumar otherwise has deposed regarding receipt of parcels from PW-7 HC Paramjeet Singh and deposit thereof in FSL for chemical analysis.

PW-7 Dy.SP Manoj Kumar has stated about receipt of report of FSL Ex. PW-7/A, but he has not disclosed how and in what manner report reached to him.

The key witnesses to prove the alleged commission of offence by the respondents, examined by the prosecution, are PW-1 Kunta Devi (mother of deceased), PW-3 Kishori Lal (father of deceased), PW-9 Tripta, Pradhan of Gram Panchayat concerned and PW-10 Sunil Rana Up Pradhan of Gram Panchayat.

PW-10 Sunil Rana, in the Court, has stated that he personally knew accused persons and their family and he remained associated with the Police during investigation, and on 5.5.2008 one packet of Aluminum Phosphorous (Salfas) Ex. P-1 was recovered by the Police nearby the house of accused. He has identified Ex. P-1, which was taken by the Police in to possession vide seizure memo Ex. PW-2/A. However, he has denied that Krishan Gopal (husband of the deceased) had informed him about the dispute with his parents and his wife deceased Promila. This witness was declared hostile on request of Public Prosecutor with permission to cross-examine the said wittiness as the witness was stated to be resiling from his earlier statement recorded by the Police.

In cross-examination by Public Prosecutor, PW-10 has admitted that his statement was recorded by the Police, and at the time of death of Promila, he was Up Pradhan of village Panjihara, however, he has denied that he had tried to make understand Krishan Gopal (husband of deceased) to live peacefully. He has denied to have made statement as recorded in portion 'A' to 'A' mark-S. He has admitted the suggestion put by Public Prosecutor that no written application was moved by Krishan Gopal in Panchayat, and on 3.5.2008, he came to know that deceased Promila, wife of Krishan Gopal had consumed poison and was taken to CHC Jawalamukhi, whereupon he reached CHC Jawalamukhi and came to know that Doctor/Medical Officer had declared Promila dead and after postmortem, dead body was handed over to them. He has also admitted that Police started investigation and during investigation he remained associated with the Police and being Up-Pradhan he used to solve the dispute of villagers, however, he has re-iterated the denial of making statement in portion 'A' to 'A' of mark-S to save the accused persons being residents of his ward. In cross-examination on behalf of accused persons, he has stated that it was correct that neither Krishan Gopal nor deceased Promila ever reported the matter with regard to any dispute, either to the Panchayat or to him either verbally or in writing. Statement of this witness is of no help to the prosecution.

PW-9 Tripta Devi was Pradhan of Gram Panchayat at the relevant time. She, in cross-examination, has stated that deceased used to visit her parents' house and also used to disclose to her regarding behavior of her in-laws with further deposition that deceased had disclosed to her about maltreatment given by her father-in-law, mother-in-law and brother-in-law for dowry. She has deposed that in the year 2004 a Biradri meeting was convened, in which she had also participated, and in that meeting respondents-accused No. 1 and 3 Kashmir Singh and Jagiro Devi (parents in law of deceased) had confessed their mistake and assured not to repeat the same again. This witness has not disclosed what was the mistake which was confessed by parents-in-laws of deceased. In cross-examination she has admitted that meeting was convened by the accused persons in the house of mother of deceased Kunta Devi and she was also summoned in the meeting. Though, she has denied that this meeting was called by the accused persons to put forth their grievance that deceased came to her parents house for one day, but did not return even after 2-2½ months. However, she has further deposed that husband of deceased had disclosed to the members, present in the said meeting, that his wife, i.e. deceased telephonically informed him that she would not come back, as she had joined service. Her deposition indicates that it were not the deceased or parents of deceased who convened or requested for calling meeting, but it was accused persons i.e. in-laws of deceased Promila, who had approached the Panchayat/Biradri for redressal of their grievances. It is case of the prosecution that brother-in-law of deceased was also residing in the family, meaning thereby it was a joint family. It was alleged that though respondent No. 2 Sanjay Kumar (brother-in-law of deceased Promila) was serving in a barber shop at Kishtwar, but he used to stay at work for six months only and at home for six months in a year.

PW-9 Tripta Devi has claimed that deceased was visiting her house and disclosing the maltreatment of her in-laws to her and she had participated in the meeting convened for resolution of dispute, but she has expressed her ignorance that family of accused persons was joint family. One side she has expressed closeness with the family of parents of deceased, but on the other hand she had stated that she has not attended the marriage of deceased and as according to her admission her house was at a distance of 500 meters from the house of deceased. In cross-examination this witness has been confronted with her deposition that as and when deceased used to visit her, she used to complain regarding behavior of accused regarding demand of dowry and deceased used to narrate her woe to her, but the said fact was not found recorded in her statement. Similarly, convening of Biradri meeting was also not found recorded in her statement mark-9. Factum of confession of guilt by the accused in the meeting and assurance to not to repeat the same activities in future was also not found recorded in her statement recorded by the Police. Whereas according to her, as also stated in the claim made in the cross-examination, she had made statement regarding recording of this fact at the time of recording of the same by the Police.

It is also apt to record that PW-9 Tripta Devi has admitted that marriage of deceased was solemnized in the temple and it was a very simple marriage in which no dowry was given and taken.

FIR Ex. PW-1/B was registered on the basis of statement of PW-1 Kunta Devi (mother of deceased Promila), recorded under Section 154 Cr.P.C. at 8:30 P.M. at Village Panjiyara. It is admitted case of the prosecution and its witnesses that deceased Promila was declared dead before 5:15 A.M. in the morning and Police party had moved from Police Station to CHC Jawalamukhi after receiving the said information.

According to PW-11 SI Dev Raj, he reached in the hospital at Jawalamukhi at about 8/8:30 A.M. Firstly gap of about three hours from departure from Police Station to CHC Jawalamukhi, which is in near vicinity in a small township of Jawalamukhi, is not explainable. According to PW-11 SI Dev Raj Investigating Officer, he visited village Panjihara at about 3:30 P.M. and recorded the statement of Kunta Devi during evening hours. As per postmortem report, postmortem was conducted at 2:00 P.M. on 3.5.2008 and matter with viscera was dispatched for chemical report on 3:45 P.M. on 3.5.2008. Perusal of statement of PW-1 Kunta Devi with endorsement of Investigating Officer, depicts that her statement was recorded at 8:30 P.M. with admission that it was recorded at Village Panjihara, which was located at a distance of ten kilometers from the Police Station.

PW-1 Kunta Devi has disclosed that she had received a call at Kurukshetra at 7:30 A.M. from her nephew Yashpal about ill health of her daughter with request to come to Jawalamukhi immediately. On receiving this information, she reached Jawalamukhi hospital, but by that time her daughter had expired. Meaning thereby that when she had arrived in the hospital, at that time dead body of deceased was in the hospital. Dead body was released from the hospital after 3:00 P.M. and thereafter cremation took place. However, till 8:30 P.M. no statement was made by the complainant PW-1 Kunta Devi to the Police, whereas according to Investigating Officer, he had arrived in CHC Jawalamukhi at about 8:30 A.M. and thereafter he submitted an application to Civil Hospital Dehra for conducting postmortem of dead body of deceased and received the postmortem report of deceased after 3:45 P.M. During intervening period, PW-1 Kunta Devi who was present on the spot did not make any statement about ill treatment to her daughter by in-laws of deceased.

The delay coupled with surrounding circumstances, creates doubt that the case was registered after due deliberation and consultation with each other, but not on the basis of true incident which is also evident from the statements of PW-1 Kunta Devi, PW-3 Kishori Lal and PW-9 Tripta Devi.

In deposition of PW-1 Kanta Devi and PW-3 Kishori Lal in the Court, it has been recorded that marriage of deceased Promila took place in the year 2008, but this appears to be a ministerial mistake as admittedly marriage took place in the year 2003 and in the statement of both these witnesses, it has come that after marriage one son was borne, who was five years old at the time of death of deceased. Whereas in case marriage is considered to be solemnized in the year 2008, then on the date of committing suicide by the deceased i.e. 3.5.2008, there was no possibility of five years old child.

PW-1 Kunta Devi and PW-3 Kishori Lal have leveled allegations that accused persons used to beat their daughter and immediately after marriage they had started maltreating their daughter for not bringing dowry and her son-in-law was a labourer and simpleton person and despite his efforts, he could not be able to resist his family members to maltreat his wife. In examination-in-chief, both of them have stated that after listening complaints of beating by deceased, they sent their daughter to her in-laws house by consoling her, but accused persons did not mend their ways and resultantly, their daughter was compelled to consume poisonous substance because of physical and mental cruelty by the accused persons.

PW-1 Kunta Devi in her cross-examination has admitted that marriage was solemnized in Jawalamukhi temple in very simple manner in presence of 7-8 persons and no dowry was demanded at the time of marriage and she has also admitted that accused were also labourers.

It is also apt to notice that PW-1 Kunta Devi has admitted that it was correct that Krishan Gopal (husband of deceased), Kashmir Singh (father -in-law of deceased) alongwith their relatives and Panchayat Pradhan had convened the meeting. She has also admitted that she had attended the mundan ceremony of child of her son-in-law on 14.4.2008 in the house of accused persons and from there they had visited Baba Balaknath Temple and at that time no complaint was made by her daughter. She has also admitted that her grandson was residing with the accused persons. The suicide was committed by deceased on 3.5.2008 and her mother PW-1 Kunta Devi has admitted that in April, 2008 she did not make any complaint to her regarding any maltreatment by the accused person.

PW-3 Kishori Lal in his examination-in-chief has re-iterated that after one month of marriage of deceased accused persons started maltreating her daughter with physical and mental cruelty, as she belong to a poor family and did not bring dowry with her and his son-in-law was unable to interfere in the matter being very simple in nature. According to him after beating given by in-laws, his daughter gradually came to his house and he presented complaint before the Gram Panchayat and matter was patched up and he had sent his daughter to her in-laws house so many times after consoling her. He has stated that on 3.5.2008 he received a call from his nephew about ill health of his daughter and he reached the house of accused and thereafter at Jawalamukhi hospital immediately and when he reached the hospital, his daughter had expired and he noticed blood on her face and clothes and death of his daughter was caused due to consumption of some poisonous substance for which she was compelled due to physical and mental agony caused by the accused persons. In cross-examination this witness has expressed ignorance about the persons who brought his daughter to the Hospital. He has also admitted that marriage of his daughter was performed in a Temple in a simple manner and further that he could not say that his daughter was disturbed due to unemployment of his son-in-law and poor condition of her family. He has admitted that he had not lodged any report regarding demand of dowry with further statement that he had gone to the house of accused 2-3 times.

Statement of PW-3 Kishori Lal also indicates that death of deceased Promila was informed well in time and her parents had arrived in the hospital before postmortem, but thereafter till 8:30 P.M. what prevented them to make a statement to the Police or why recording of statement was delayed by the Police till night, are the facts which create doubt about the veracity of the allegation contained in the complaint as well as in the prosecution story.

Though, it has been claimed in the prosecution story that it was the parents of the deceased, who were approaching the Panchyat against maltreatment to the deceased by the accused persons, however, in cross-examination, PW-9 Tripta has admitted in unequivocal terms that it were in-laws of the deceased, who had approached and convened the meeting to putforth their grievances including message sent by deceased Promila to her in-laws that for joining job at Chandigarh, she would not come to her in-laws house. Even otherwise there are bald allegations without any specific incident or date. The only date or year which has come in the statement of PW-9 Tripta is 2004. Since 2004 till 2008, there is no evidence on record regarding any maltreatment by in-laws or complaint made by her parents in this regard. The deceased committed suicide in May, 2008. Immediately before that in the month of April 2008, her parents had joined and participated in Mundan ceremony of their grand son. Admittedly at that time no complaint was made by deceased Promila to her mother or any body else.

PW-9 Tripta is silent about any complaint after 2004, contrary to claim of the prosecution, she has admitted that it were respondents who were approaching the Panchyat and Biradri and at their instance meeting was convened to redress their complaint.

In FSL report, it has been reported that Phosphine gas was found in part of stomach, part of spleen and kidney, part of small and large intestine, stain of vomit on the clothes of deceased and partially burnt wrapper of sulphos. At the time of postmortem no other injury was seen. Viscera was collected and sealed and sent for chemical examination and opinion of Medical Officer was kept reserved till report of chemical analysis. After receiving chemical analysis report, it was opined by the doctor that patient had died due to organo phosphorous poisoning. Postmortem report and chemical analysis report have not been disputed by the accused persons, therefore, non-examination of Doctor Hemander Mahajan, wrongly mentioned in the list of witnesses as Mohinder Mahajan is inconsequential. However prosecution has miserably failed to prove the cause of committing suicide by deceased Promila, much less only role of accused persons in committing suicide by her, even remotely.

Prosecution has failed to prove any demand, much less any illegal demand on behalf of respondents-accused persons amounting to mental or physical cruelty by the respondents soon before committing suicide by deceased Promila, on account of causing or threat to cause grievous injury or danger to life, limb or health of deceased, so as to derive the deceased to commit suicide.

Deceased has committed suicide within seven years of solmization of marriage, however for want of material, there is nothing on record to attract the presumption under Section 113 A of Indian Evidence Act to construe that it were accused persons who abetted suicide, rather it is a case of no evidence against the accused persons.

Suicide alone itself does not amount to conclusive proof of abetting to commit suicide on account of cruelty or harassment on the part of respondents. Prosecution, despite provision of legal presumption of abetment of suicide under Section 113-A of the Indian Evidence Act (now Bhartiya Sakshya Adhiniyam), has to prove its case beyond reasonable doubt by leading cogent, reliable and convincing evidence to prove the guilt of the accused persons. The presumption is rebuttable.

In present case the presumption is not rebutted and prosecution case stands demolished even in the admissions made by PW-1 Kunta Devi, PW-3 Kashmir Singh and PW-9 Tripra, which reflects converse story to the allegations of the prosecution. Therefore, prosecution case is doubtful and where there is a doubt, benefit has to be extended to the accused persons.

Respondents also have advantage of being acquitted by the Trial Court fortifying presumption of their innocence and learned Additional Advocate General has not been able to point out any evidence to reverse the findings of the Trial Court.

Accordingly, we are of the considered opinion that no case warranting interference of this Court in this appeal against acquittal, is made out. Accordingly, appeal is dismissed alongwith pending miscellaneous application(s), if any. Record of the Trial court be sent back forthwith. Bail bonds furnished by the respondents stand discharged.