High Court of H.P.IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

Cr.Appeal No.202 of 2008.

Reserved on: 13

th

March, 2015.

Decided on: 18

th

March, 2015.

State of H.P. ...Appellant.

VERSUS

Jasbir Singh and others …Respondents.

Coram

The Hon’ble Mr.Justice Rajiv Sharma, Judge.

The Hon’ble Mr.Justice Sureshwar Thakur, Judge.

Whether approved for reporting? Yes.

For the Appellant: Mr. J.S. Guleria, Assistant Advocate

General.

For the Respondents: Mr. Onkar Jairath, Advocate.

_________________________________________________

Sureshwar Thakur, Judge.

This appeal is directed against the judgment rendered

on 27.08.2007 by the learned Sessions Judge, Bilaspur, H.P., in

Sessions Trial No.16 of 2003, whereby the respondents have been

acquitted of the offences punishable under Sections 302, 306 and

498A read with Section 34 of the Indian Penal Code.

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2. The facts, in brief, are that on 18.10.2002 at about

6.30 a.m., an information was received at Police Station Kot-

Kehloor through B-10 (wireless set) that Smt. Harjeet Kaur resident

of Village Majari (hereinafter referred to as the deceased) had

consumed poison and that she was admitted in Nangal Hospital. In

this regard, rapat No. 27, dated 18.10.2002 was got entered in the

rapat roznamcha register. In order to verify this report, H.C. Jai

Dev went to BBMB Hospital, Nangal, where he was told that on

17.10.2002 the deceased had been referred to PGI. On this, H.C.

Jai Dev went to PGI and came to know from the O.P.D. that the

deceased had not been brought there. Upon this, he returned to

police station and made rapat No.27 in rapat roznamcha. On

18.10.2002, at about 9.30 p.m., the complainant telephonically

informed police station that his niece (deceased) had died in a

private hospital (Kakkar Hospital) under suspicious circumstances.

On this information, rapat No.17, dated 18.10.2002 was entered in

the rapat roznamcha and ASI Prith Pal left for Kakkar Hospital along

with other police officials and recorded the statement of the

complainant.

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3. It is highlighted that the complainant is the uncle of

the deceased whose parents died in the year 1992 and that she

along with her three sisters and brother was under the care and

custody of the complainant, who also married her to accused Jasbir

Singh about seven/eight years ago. Only after one year of the

marriage, accused Jasbir Singh started giving beatings to the

deceased and also stopped paying her money. Thereafter, he went

to Dubai and used to visit his house/native place after every year.

It is alleged that whenever, he used to visit his house, his “Bhabi”,

accused No.3 Malkiat Kaur had been instigating him against the

deceased and for this reason, she was being given beatings besides

subjected to harassment. As such, accused No.3 had also been

participating in the maltreatment and ill treatment meted out by

accused No.1 to the deceased. Regarding being harassed/given

beatings, the deceased had been complaining the complainant

many times but every time, he along with other family members,

used to prevail upon her to have patience so that in future, accused

No.1 and accused No.3 may mend their ways to treat her nicely.

Even accused No.1 had been admitting his mistakes by

promising/assuring to keep the deceased well and to provide her

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money etc. In this regard, there had also been a written

compromise. Twice, the deceased had also told that accused No.1

used to say/threaten that since she (deceased) was unable to bear

children, he would remarry and leave or kill her. Accused No.3 also

wanted this and used to torture and beat her when accused No.1

had been away to Dubai. From the date of alleged occurrence,

accused No.1 had come from Dubai a week ago. On 18.10.2002,

some unknown person telephonically informed the complainant that

on 17.10.2002, during night time, the deceased had consumed

poison and that she had been removed to Nangal Hospital from

where she was referred to PGI, but the accused got admitted her in

Kakkar Hospital, Morinda (hereinafter referred to as the Hospital) in

stead of taking her to PGI. Upon this, he, along with Jaswant Singh

and other relatives, went to the Hospital where the deceased was in

a critical condition. Accused No.3 was also sitting by her side.

There he came to know that accused No.1 and accused No.3 had

got her admitted there (hospital) and himself (accused No.1) went

away and did not return. The complainant expressed his

suspicion/doubt that the deceased had consumed poison for the

reason that she had been fed up by the harassment and ill-

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treatment being given to her besides beatings. Consequent upon

the aforesaid facts/allegations, case under Sections 498A, 306 read

with Section 34, IPC was registered. Inquest papers were prepared

and dead body was got sent to District Hospital, Bilaspur, where

postmortem was conducted. Site plan was prepared and the house

of the accused persons was searched.

4. During the course of the investigation conducted by

Shri Gurdial Singh, the then SHO of the police station, it was

unraveled that the deceased had told Dr. Neeraj kakkar that on the

date of incident her husband (accused No.1) had beaten her and

strongly hold her and that accused No.2 Charan Kaur made her to

take poison. As such, on such statement of Dr. Neeraj Kakkar,

Section 302 was also added. The clothes and viscera of the

deceased were got sent to the FSL and to this effect, report was

obtained as per which no poison had been detected. On having

received this report, it was produced before the doctor who had

conducted the postmortem because as per their opinion, they had

also expressed the possibility of the deceased to have died by

poisoning or torsion of left ovarian cyst leading to hemorrhagic

ascits. In these circumstances, in order to clarify the contradictory

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opinions/versions, a clarification was again sought from FSL which

was given as per report of SFSL/Crime 02-3132 dated 28.11.2002.

In that report, it was made clear that in cases, where no traces of

poison are found, that should not assumed to rule out poison. In

the report, the possible reasons of negative findings were given

which are as under:-

“(i) The poison may have been eliminated by vomiting and

diarrhea.

(ii) The whole of the poison may have disappeared from

the lungs by evaporation or oxidation.

(iii) The poison after absorption may be detoxified,

conjugated and eliminated from the system.

(iv) If the victim has been treated, the medication itself

may alter the poisonous substance and make its

detection difficult or even impossible.

(v) Volatile and gaseous poisons if not properly preserved

disappeared rapidly from the tissue with passage of

time.”

5. On the basis of clarifications, received from FSL

aforesaid, the opinion of the doctors who had conducted the

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postmortem was again obtained and it is to this effect that “if the

suspected poison has been eliminated from the body by vomiting

diarrhea, evaporation from the lungs, then there could be a

possibility of poisoning. From the subsequent opinion given by the

doctors who had conducted the postmortem examination, the

prosecution theory/story that the deceased had been administered

poison with an intention to kill her got support/strength. Thus, A-2

was also arrested on 13.11.2002.

6. From the spot position, statement of the witnesses,

records from BBMB Hospital, Nangal and the Kakkar Hospital, FSL

clarification report and the injuries found on the dead body, as per

their mention in postmortem report, it was found in the

investigation that accused No.1 had given beatings to the deceased

with a broom (jharu) and that when she became helpless, she was

made to take poison which was administered by accused No.2 for

the reason that she was unable to bear a child. When the deceased

started vomiting, it got rumoured that she had taken poison. In the

investigation, it further came that although, it had taken place on

17.10.2002 at 8/8.30 p.m. but she was admitted at BBMB Hospital,

Nangal on the night intervening 17/18.10.2002 at 1.00 a.m. In

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fact, the distance of Nangal from Majari is only that of half an hour.

Further, although, the deceased had been referred to PGI but she

was taken to Kakkar Hospital which also casts a doubt on the

conduct of the accused persons. Even, accused No.1 managed to

run away after getting the deceased admitted in the hospital on

18.10.2002 at 6.00 a.m. and did not take her body and perform the

last rites. Written compromise dated 22.11.1993 also gave strength

to the case of the prosecution that the deceased was being

harassed/given beatings by accused No.1. Hence the trial.

7. On conclusion of investigation into the offence,

allegedly committed by the accused/respondents, challan was filed

under Section 173 of the Code of Criminal Procedure.

8. The accused No.1 was charged for his having

committed offences punishable under Section 498-A, 306 and 302

read with Section 34 IPC and accused No.2 and 3 were charged for

theirs having committed offences punishable under Sections 306,

498A read with Section 34 of the IPC by the learned trial Court, to

which they pleaded not guilty and claimed trial.

9. In order to prove its case, the prosecution examined as

many as 16 witnesses. On closure of the prosecution evidence, the

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statements of the accused under Section 313 Cr.P.C., were

recorded, in which they pleaded innocence. On closure of

proceedings under Section 313 Cr.P.C., the accused were given an

opportunity to adduce evidence in defence, and they chose not to

adduce any evidence in defence.

10. On appraisal of the evidence on record, the learned

trial Court, returned findings of acquittal in favour of the

accused/respondents.

11. The State of H.P. is aggrieved by the judgment of

acquittal, recorded by the learned trial Court. Shri J.S. Guleria,

learned Assistant Advocate General, has concertedly and vigorously

contended that the findings of acquittal, recorded by the learned

trial Court, are not based on a proper appreciation of the evidence

on record, rather, they are sequelled by gross mis-appreciation of

the material on record. Hence, he contends that the findings of

acquittal be reversed by this Court, in the exercise of its appellate

jurisdiction and be replaced by findings of conviction and

concomitantly, an appropriate sentence be imposed upon the

accused/respondents.

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12. On the other hand, the learned counsel, appearing for

the respondents-accused, has, with considerable force and vigour,

contended that the findings of acquittal, recorded by the Court

below, are based on a mature and balanced appreciation of

evidence on record and do not necessitate interference, rather

merit vindication.

13. This Court with the able assistance of the learned

counsel on either side, has, with studied care and incision,

evaluated the entire evidence on record.

14. Deceased Harjeet Kaur was married to accused Jasbir

Singh. Their marriage took place about eight years prior to the

occurrence. The attribution of an inculpatory role to the accused

(Jasbir Singh) is of his though having departed to Dubai yet on his

visiting home, he in collusion and in connivance with accused A-3

(Malkiat Kaur alias Soma) subjecting his deceased wife to physical

cruelty as well as to harassment. The prosecution alleges that in

the absence from home of A-1, both A-2 (accused Charan Kaur)

and A-3 (Accused Malkiat Kaur) subjected the deceased wife of A-1

to cruelty. Moreover, mental cruelty has also been alleged by the

prosecution to have been perpetrated upon the deceased arising

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from taunts being meted by A-1 to the deceased for her inability to

bear a child as also encumbering her mind with mental trauma

arising from his threats to her to re-marry. The aforesaid, hence,

have been canvassed by the prosecution to constitute an instigatory

and actuatory factor for the deceased to commit suicide. The

prosecution witnesses, PW-2, PW-3, PW-4 and PW-14 have

deposed in unison qua disclosures having been made by the

deceased to each of them qua hers having been during her stay in

her matrimonial home subjected by each of the accused to physical

as well as mental cruelty. However, their depositions are vague

and nebulous, inasmuch as they are imprecise and inexact qua the

timings of perpetration of such mental as well as physical trauma

upon the deceased besides, their potency remains unarticulated

and consequently, there is lack of cogent evidence portraying that

the purported acts of physical and mental cruelty which drove the

deceased to commit suicide occurred at a time proximate to the

alleged occurrence so as to conclude, hence, that such acts

constituted a potent instigation for the deceased to commit suicide.

In aftermath, the conclusion is that the prosecution has abysmally

failed to bring home clinching and overwhelming evidence to mark

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the guilt of the accused for theirs having committed the offences

punishable under Sections 498-A, 306, 302 read with Section 34 of

the IPC. Even otherwise, the depositions of the prosecution

witnesses aforesaid in striving to attribute to the accused a role of

theirs having perpetrated mental and physical trauma upon the

deceased stands ousted by the factum of recording of compromise

deed Ex.DW3/A , translation whereof is Ex.PW 16/B. The aforesaid

came to be recorded in the year 1993. However, the occurrence

took place on 18.10.2002. Since, given the existence of eruption of

a wrangle in the matrimonial relations of the deceased and A-1 in

the year 1993 and thereafter no compromise having come to be

drawn, paves way for an inference that subsequent to 1993 till the

occurrence, there was no bickering or acrimony in the marital

relations of A-1 and the deceased. The eruption, if any, would

have as had transpired earlier as manifested by Ex.DW3/A of a

previous marital duel having occurred inter se accused No.1 and his

deceased wife and its having amicably settled, would too have

sequeled the convening of a Panchayat for the termination of the

dispute. It appears that since there is no evidence portraying the

fact that any panchayat was convened at the instance of the

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deceased to resolve her marital discord with accused No.1 the

ready inference is that, hence, there was no marital discord inter se

accused No.1 and his deceased wife. As a natural concomitant, the

factum of no Panchayat having been convened to abort the

purported strained relations inter se accused No.1 and his deceased

wife facilitates an inference that the testimonies of the prosecution

witnesses, aforesaid are in their entirety anvilled upon

prevarication. Even otherwise, in the face of revelation in Ex. D-3,

the statement of account of the saving banks account of the

deceased, of its swelling sequeled by replenishment from the funds

remitted in it by the accused from Dubai which sequeled the

construction of a house at the instance of the deceased, dispels the

factum of theirs being uneasiness and discord inter se the deceased

and accused No.1. Moreover, Ex. D-5, copy of Parivar Register

discloses that accused No.3 is living separately in the house of her

husband and not in the family of A-2. The aforesaid facts, garners

an apt conclusion that the deceased was staying separately in the

newly constructed house from the funds received by transmission

into her saving bank account by accused No.1, who was serving in

Dubai and that both accused No.2 and 3 were living separately

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from the deceased. Consequently, there was no occasion for the

accused to, in connivance and in collusion with each other

perpetrate mental and physical cruelty upon the deceased as

alleged by the prosecution. Moreover, the factum of accused No.1

taunting the deceased for not bearing a child as also threatening to

remarry also does not inspire the confidence of the Court, more

especially, in the face of the accused having adopted the daughter

of accused No.3. Moreover, even if, accused No.1 intended to

remarry, he would have not proceeded to transfer funds into the

accounts of the deceased to enable her to carry out the

construction of a house, wherein she was residing separately from

accused No.2 and 3. The aforesaid discussion forcefully portrays

the factum that the prosecution has adduced nebulous and infirm

evidence in proof of the accused having committed offences under

Section 498-A and Section 306 of the IPC.

15. However, the aforesaid allegations constituted against

the accused further wane and loose their probative sinew in the

face of Gurdial Singh, PW-16, during the course of his carrying out

investigation, having unearthed material communicating the factum

of accused No.2 with the aid of accused No.1 having administered

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poison to the deceased besides, there is also an unveiling in the

investigation carried out by PW-16 of accused No.1 having

delivered beatings upon the deceased with broom, Ex.P-1 which

was recovered under recovery memo Ex.PW6/A. The somersault in

the posture of PW-16, inasmuch as he during his having carried out

investigation having detected the factum, hence, of the accused

having committed the murder of the deceased in the manner

aforesaid, obviously, then the charge against the accused under

Section 498-A and 306 amplifyingly besides, for the aforesaid

reasons, too gets wholly jettisoned.

16. For determining whether the prosecution has

efficaciously, proved the factum of the accused having murdered

the deceased, the apt and germane material to be adverted to is

Ex.PW8/B, the final opinion offered by Dr. A.K. Soni (PW-8) on his

having considered the report of FSL, Ex.PW7/A, wherein he has

communicated the opinion that the deceased died of shock owing

to torsion of left ovarian cyst leading to heaemorrhagic ascites.

However, the occurrence of a statement in his deposition, of

injuries observed to be existing on the body of the deceased in

Ex.PW8/A being sequelable with broom Ex.P-1, depending upon the

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force with which it used, has been heavily relied upon by the

prosecution, especially in the face of its recovery under ExPW6/A at

the instance of the accused, to be its hence articulating the fact

that even if the final opinion reveals the factum of the demise of

the deceased having occurred due to torsion of left ovarian cyst

leading to haemorrhagic ascites, combined with the factum of the

accused having administered poison, hence, the prosecution has

been unflinchingly able to sustain the charge against the accused.

However, the above assiduous concert on the part of the

prosecution stands torpedoed by a further existence in the

deposition in the cross-examination of PW-8 of the injuries leading

to death being even causable by accidental fall especially when the

patient was under shock. If, hence, doubt arises qua the cause of

injuries, benefit thereto ought to go to the accused. Consequently,

the factum of recovery of Ex.P-1 under memo Ex.PW6/A cannot at

all sway this Court to conclude that the accused had any

inculpatory role in inflicting any purported beatings with broom on

the person of the deceased and such beatings having upsurged the

cause of death as opined by PW-8. However, again the

prosecution has with renewed vigour relied upon the deposition of

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PW-12, who has therein spelt out the communication to him by the

deceased of her husband having delivered merciless beatings upon

her and hers having then being administered poison by her mother-

in-law, hence even if, no traces of poison were detected to be

occurring in the germane and relevant parts of the body of the

deceased, wherein it would have poured into, the aforesaid

deposition of PW-12 which led PW-16 to conclude during the course

of investigation that an offence under Section 302 of the IPC is

constituted against the accused, is of vigorous strength for

sustaining the charge against the accused. However, the deposition

of PW-12 stands negated and potently repulsed by the factum of :-

(a) Revelation in Ex.PW12/B of the deceased having died

after 8.00 p.m. on 18.10.2002, obviously then the

deceased would not have, when she was no longer

alive at 9.30 p.m., proceeded to as deposed by PW-12

make an oral dying declaration before PW-12 wherein

she attributed an inculpatory role to the accused.

(b) With the revelation in the deposition of PW-13 of the

deceased since her admission in BBMB, Hospital,

Nangal till she was referred to PGI, Chandigarh, having

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remained un-conscious, veracity whereof has remained

un-shred or un-overwhelmed, renders the deposition

of PW-12 qua on his visiting the deceased at 9.30 p.m.

on 18.10.2002, the latter having made an oral dying

declaration before him, to be ridden with inveracity.

(c) PW-3 Amar Singh having deposed that the deceased

when admitted in hospital was unconscious.

(d) PW-15 too in corroboration with the deposition of PW-

13 having deposed the factum of his having been

informed by PW-12 of the deceased having come to be

admitted in an unconscious state of mind and she

having not regained consciousness, erodes the veracity

of the deposition of PW-12 of the deceased having

made any purported oral dying declaration before him.

(e) Ex.PW12/A which marks the fact of the patient

undergoing treatment under chart Ex.PW12/B being

conscious is handwritten and has remained un-

initialed. Even though on the factum of hers being

conscious is encircled in Ex.PW12/B, hence,

Ex.PW12/A may then while constituting a vigorous

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piece of evidence out weigh the deposition of the

witnesses aforesaid. Nonetheless, the factum of it

having remained un-initialed and PW-12 having

deposed his not having scribed it, furthermore, its

authorship having remained undetermined cannot

carry it forward so as it, to be construed to be a

vigorous piece of evidence for overwhelming the

deposition of the witnesses aforesaid which

pronounces upon the factum of the deceased having

died at 8.00 p.m., hence, incapacitated to at 9.30

p.m., make an oral dying declaration before PW-12.

(f) Moreover, even though, PW-8 has deposed that even

if, poison is emitted through diarrhea or vomiting even

then the contents of poison remain in the kidney

spleen, liver and blood. Obviously, then if assuming

an oral dying declaration qua the cause of her demise

was made by the deceased to PW-12, yet he has not

been portrayed to have then proceeded to collect the

vomit material of the deceased nor concerted to

extract from the kidney spleen, liver and blood, where

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the poison purportedly forcibly administered by the

accused had, hence, poured into. Omission on the part

of PW-12 to make concerted endeavours in the

aforesaid direction renders open an apt conclusion that

the preponderant reasons for the demise of the

deceased was owing to torsion of left ovarian cyst

leading to haemorrhagic ascites. Contrarily, the

submission of the learned Assistant Advocate General

that the demise of the deceased was begotten by

forcible administration of the poison stands

discountenanced.

17. The aforesaid discrepancies and infirmities,

which existed in the prosecution story, are grave and pervasive

and take to stall the genuineness or the veracity of the

prosecution story. Given the existence of the aforesaid

infirmities, the prosecution story receives a jolt inasmuch as the

prosecution version is to be construed to be incredible.

18. The learned trial Court has appreciated the

evidence in a mature and balanced manner and its findings,

hence, do not necessitate interference. The appeal is dismissed

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being devoid of any merit and the findings rendered by the

learned trial Court are affirmed and maintained. Records of the

learned trial Court be sent down forthwith.

(Rajiv Sharma)

Judge.

18

th

March, 2015. (Sureshwar Thakur)

(TM/jai) Judge.

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