Rajesh Kumar vs State Of Punjab on 25 November, 2017

CRA-S-51-SB-2012 -1-

IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH

CRA-S-51-SB-2012 (OM)
Date of decision: 25.11.2017

Rajesh Kumar
… Appellant
Vs.

State of Punjab
… Respondent

CORAM: HON’BLE MR. JUSTICE ARVIND SINGH SANGWAN

Present: Mr. Aman Sharma, Advocate (Legal Aid Counsel)
for the appellant.

Mr. Jagmohan Ghumman, DAG, Punjab.

*******

ARVIND SINGH SANGWAN, J.

Challenge in this appeal is to the judgment of conviction dated

17.11.2011 vide which the appellant was held guilty of offence punishable under

Section 306 of the Indian Penal Code (‘IPC’ for short) and the order of sentence

dated 17.11.2011 vide which the appellant was sentenced to undergo R.I. for 5

years and to a fine of Rs.5,000/- and in default of payment of fine, he was

ordered to undergo further imprisonment for two months.

This appeal is being pursued through legal aid counsel appointed by

the High Court Legal Services Committee. The appeal was admitted on

05.01.2012 and sentence of the appellant Rajesh Kumar was suspended vide

order dated 22.02.2013.

Brief facts of the case are that on 06.05.2011, SI Gurbir Singh,

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Incharge, Police Post Vardhman received a telephone message that a lady hanged

herself at Bangi Nagar, Street No.9, Bathinda. On receiving the information, he

along with his other police officials reached the spot, where he met Jasvir Singh

son of Darshan Singh and recorded his statement. As per the statement, Jasvir

Singh stated that he is a helper on bus of Adesh Hospital, Bathinda. They are

three brothers and three sisters. His elder sister Rajji @ Nisha was aged about 28

years and was married to Rajesh Kumar @ Shunti son of Krishan Lal about 7/8

years ago. She had two children aged about 5 years and 3 years. His brother-in-

law Rajesh Kumar was a fruit vendor and was in the habit of taking intoxicant

and he used to beat his sister. On 04.05.2011, his sister left her matrimonial home

and came to stay with them in her parental home and on the same day, in the

evening, her husband Rajesh Kumar, her father-in-law Krishan Lal and her

mother-in-law Smt. Sheela Rani came there and persuaded his sister to go back to

her matrimonial home and on their persuasion, she went back. On the night of

05.05.2011, his sister Rajji @ Nisha fed up with maltreatment and committed

suicide by hanging herself with the hook of ceiling fan in her matrimonial home.

On receiving this information, the police party reached the matrimonial home of

his sister and there they came to know that her neighbours namely Rajpal Kaur

and Baba Gurdip Singh along with certain other persons brought the body of his

sister down from the hook of ceiling fan but she was dead. It was further stated

that his sister taken this step due to the harassment given by her husband, father-

in-law and mother-in-law.

On the basis of statement Ex.PA, which was endorsed by SI Gurbir

Singh, the police registered FIR Ex.PW4/B under Section 306 read with Section

34 IPC. Thereafter, police investigated the matter and prepared a site plan

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Ex.PW4/C and inquest report Ex.PW4/D. The accused persons were arrested vide

their arrest memo Ex.PW4/H and search memos Ex.PW4/J to Ex.PW4/L were

prepared. After recording statement of the witnesses under Section 161 Cr.P.C.,

the investigation was completed and challan under Section 173 Cr.P.C. was

submitted before the trial Court and thereafter, the case was committed to the

Court of Sessions. All the three accused persons were charge-sheeted under

Section 306 IPC read with Section 34 IPC, to which they pleaded not guilty and

claimed trial.

The prosecution examined four witnesses. PW1 Jasvir Singh-

complainant deposed on the same line as per his statement recorded before the

police Ex.PA and stated that his sister has committed suicide on account of

maltreatment given by her husband and in-laws. PW2 Darshan Singh, father of

Jasvir Singh PW1 as well as father of deceased Rajji @ Nisha, also deposed on

the same lines. This witness also stated that on inquiry from the neighbours, he

came to know that his daughter committed suicide on account of severe beatings

given by her in-laws. He also stated that Rajpal Kaur and Baba Gurdip Singh

brought down the body of his daughter from the hook of fan and when he

reached, the dead body was lying in the Courtyard. Thereafter, police reached and

searched the place of occurrence and completed the formalities. PW3 Dr.

Maninder Singh Brar, Medical Officer, Civil Hospital, Bathinda submitted his

affidavit as Ex.PW3/A, in which it is stated that on 06.05.2011, he along with Dr.

Monika Gupta conducted the post-mortem on the dead body of Rajji @ Nisha as

per the post-mortem report Ex.PW3/B, pictorial diagram Ex.PW3/C and

Ex.PW3/D. During cross-examination, this witness has stated that except the

injury on the neck, there was no mark of injury or violence on the entire body of

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Rajji @ Nisha.

PW4 SI Gurbir Singh testified on the same lines as per the

investigation conducted by him and produced on record all the relevant

documents as Ex.PW4/A to Ex.PW4/L. This witness gave all the details of

conducting the investigation at the spot as well as the post-mortem report

obtained from the doctor and arrest memo of the accused persons and preparation

of the search memos. In cross-examination, this witness deposed as under: –

“I also did not record the statement of Baba Gurdip Singh and

Rajpal Kaur. I did not visit the house of Rajesh Kumar, accused on

backside of Bus Stand, Bathinda, whereas he was residing with his

deceased wife Rajjii @ Nisha. I did collect any evidence or record,

statement of any of the witnesses regarding the dispute between the

complainant and the accused except for the statement of the

complaint. I also did not record the statement of mother of the

deceased.”

Thereafter, the trial Court recorded the statement of accused persons

under Section 313 Cr.P.C., in which all the incriminating evidence, which has

come on record against them, was put to them. They denied all the allegations

levelled against them and pleaded their innocence and false implication in the

case. However, no defence evidence was led.

The trial Court, on appreciation of evidence of the prosecution, vide

its judgment of conviction dated 17.11.2011 acquitted two accused persons

namely Krishan Lal and Sheela Rani i.e. father-in-law and mother-in-law of

deceased Rajji @ Nisha, holding that the prosecution has failed to prove the

charge against them beyond reasonable doubt, however, convicted the appellant

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Rajesh Kumar @ Shunti, husband of deceased Rajji @ Nisha, under Section 306

IPC and vide order of sentence dated 17.11.2011 ordered him to undergo R.I. for

five years and to pay a fine of Rs.5,000/-. In default of payment of fine, the

appellant was ordered to undergo further imprisonment for two months.

Counsel for the appellant submits that the ingredients of abetment on

the part of the appellant are not proved by the prosecution. It is submitted on

behalf of the appellant that as per the statement of complainant Jasvir Singh

PW1, it is alleged that the appellant was a drug addict and he used to give

beatings to his wife deceased Rajji @ Nisha. Counsel for the appellant has

submitted that no evidence has been collected or produced by the prosecution to

prove that on any previous occasion prior to 04.05.2011, the complainant Jasvir

Singh or his father Darshan Singh, at any point of time, has lodged any complaint

with the police authorities or any of the relative to the effect that deceased Rajji

@ Nisha was given beatings or maltreated by her in-laws.

It is further submitted by counsel for the appellant that no witness

from the locality, where deceased Rajji @ Nisha was residing in her matrimonial

home, was examined to prove that she was ever maltreated by the appellant-

husband or any other family member from her in-laws’ side. Counsel for the

appellant has relied upon the statement of PW4 SI Gurbir Singh, who conducted

the investigation, wherein he stated that when he reached the spot, two of the

neighbours Baba Gurdip Singh and Rajpal Kaur were found present, who brought

down the dead body from the hook of the fan, however, their statement was never

recorded by the prosecution. Even no other neighbour, who was present at the

spot, was joined in the investigation to find out that deceased Rajji @ Nisha was

ever given beatings by her in-laws.

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Counsel for the appellant has further submitted that the allegations of

PW1 and PW2 are not corroborated from the statement of PW3 Dr. Maninder

Singh Brar, who conducted post-mortem and stated as under: –

“Except for injury of hanging on the neck there was no mark of

injury or violence on the entire body of Razzi @ Nisha.”

It is thus submitted that the case set up by the prosecution that the

complainant Jasvir Singh and his father Darshan Singh received a phone call on

05.05.2011 that deceased Rajji @ Nisha was given beatings by the accused

persons, is not proved from the post-mortem report, as there was no external

mark of injury or violence on the dead body. It is further submitted that it is the

case of the prosecution that marriage of the appellant Rajesh Kumar with Rajji @

Nisha was performed about 7/8 years ago and out of this wedlock, two children

aged about 5 years and 3 years were born. The appellant was a daily wager who

was running a small fruit stall and therefore, the allegations that the appellant was

a drug addict, are not proved as the appellant was proved to be a daily wager who

was looking after his family. Counsel for the appellant has further submitted that

there are material discrepancies in the statements of PW1 Jasvir Singh and PW2

Darshan Singh regarding the manner of receiving the message and reaching

house of the appellant.

Counsel for the appellant has relied upon Hans Raj Vs. State of

Haryana, 2004 (2) RCR (Crl.) 58, wherein the Hon’ble Supreme Court, while

dealing with an appeal against conviction under Section 306 IPC, held as under: –

“Having regard to the principles aforesaid, we may now advert to

the facts of this case. The learned Trial Judge took the view that

since the wife of the appellant committed suicide and since the

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appellant did not disclose as to what conversation preceded her

committing suicide and that there were allegations of cruelty against

the appellant, it must be presumed underSection 113-A of the Indian

Evidence Act that the suicide had been abetted by him. We do not

find ourselves in agreement with the finding of the Trial Court,

having regard to the facts and circumstances of this case and our

finding that the prosecution is guilty of improving its case from

stage to stage. The allegations that the appellant did not like to keep

the deceased with him because she was not good looking, or that he

was addicted to liquor or that the deceased had reported these

matters to her parents and others, or that the appellant intended to

re-marry and had told his wife Jeeto about it, or that the deceased

had once come to her father’s house in an injured condition, or even

the allegations regarding beatings, do not find place in the

statements recorded by the police in the course of investigation.

These allegations have been made at the trial for the first time. All

that was alleged in the FIR or even at the stage of investigation was

that there were frequent quarrels between the husband and wife

sometimes resulting in physical assault, on account of the husband

being addicted to consumption of ‘Bhang’. The other allegation that

the appellant was aggrieved of the fact that his sister Naro was not

being properly treated by Fateh Chand, PW-3, brother of the

deceased, also appears to be untrue because there is nothing on

record to show that there was any disharmony in the marital life of

his sister Naro. In fact, Fateh Chand, PW-3, her husband, himself

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stated on oath that he was living happily with his wife Naro, sister

of the appellant. On such slender evidence therefore we are not

persuaded to invoke the presumption under Section 113-A of the

Indian Evidence Act to find the appellant guilty of the offence

under Section 306 I.P.C.

The Trial Court found that there was material to

support the charge under Section 498-AI.P.C. but did not pass a

sentence under Section 498-A I.P.C. on a finding that the same will

be overlapping, the appellant having been found guilty of the

offence under Section 306 I.P.C. Having regard to the facts of the

case, we are satisfied that though the prosecution has failed to

establish the offence under Section 306 I.P.C., the evidence on

record justifies the conviction of the appellant under Section 498-

A I.P.C.

We, therefore, set aside the conviction and sentence

passed against the appellant under Section 306 I.P.C. and acquit

him of that charge, but we find the appellant guilty of the offence

under Section 498-A I.P.C and sentence him to undergo rigorous

imprisonment for one year on that count. This appeal is partly

allowed. The appellant was admitted to bail by this Court. His bail

bonds are cancelled, and he must surrender to his sentence, subject

to the provisions of Section 428 of the Code of Criminal Procedure.

Appeal partly allowed.”

It is submitted by counsel for the appellant that since no evidence

was produced by the prosecution to prove that immediately before Rajji @ Nisha,

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when she committed suicide, the appellant in any manner has abetted her to

commit suicide and therefore, the offence under Section 306 IPC is not made out

and it is only a case falling under Section 498A IPC. It is further submitted that

the appellant has already undergone 01 year, 08 months and 06 days of actual

sentence and 02 years, 01 month and 17 days of total sentence including

remission. It is also submitted that the appellant is not the previous convict; he is

not involved in any other case; he has not misused the concession of bail after

22.02.2013 and he is taking care of his minor children.

In reply, learned State counsel, on the basis of affidavit dated

16.02.2013 of Superintendent, Central Jail, Bathinda has not disputed the custody

part undergone by the appellant, however, has submitted that it has come in the

statement of PW1 and PW2 that the appellant used to give beatings to deceased

Rajji @ Nisha and on that account, she has committed suicide. He prays for

dismissal of the appeal.

After hearing learned counsel for the parties, I find merit in the

present appeal. The trial Court, in para 24 of the impugned judgment, has though

recorded a finding that the prosecution has not led any cogent evidence to prove

that the appellant Rajesh Kumar used to take intoxicant and there was no mark of

injury or violence on the entire body of deceased Rajji @ Nisha except for the

neck, yet held him guilty holding that it is established on record that there was a

dispute between the husband and wife and she left the matrimonial home on

04.05.2011 and went to her parental house and therefore, this was sufficient

reason for the deceased to commit suicide. On careful perusal of statements of

PW1 and PW2, brother and father of deceased Rajji @ Nisha, it is apparent that

previously they never made any complaint to any authority or the relatives

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regrading maltreatment given by the appellant to his deceased wife. It has also

not been proved from the statements of these two prosecution witnesses that

since the time of marriage of deceased Rajji @ Nisha with the appellant Rajesh

Kumar, in the intervening period of about 7/8 years, there was any such

complaint of beating given by the appellant. It is admitted case that both the

husband and wife were living in a separate house and were having two children

aged about 5 years and 3 years and therefore, in the absence of any evidence that

on any previous occasion, deceased was harassed or beaten by the appellant, the

evidence of abetment to commit suicide on 05.05.2011 is not proved on record.

The evidence that the appellant had visited her parental home on 04.05.2011 and

was taken back by her in-laws, as per own version of the prosecution, shows that

the appellant Rajesh Kumar and his parents were interested in keeping the

deceased Rajji @ Nisha in the matrimonial home as the couple has two minor

children.

It may be noticed here that except the statement of brother and father

of the deceased as PW1 and PW2, no witness was examined from the locality

where the appellant-husband Rajesh Kumar and his deceased wife Rajji @ Nisha

were residing despite the fact that it has come in the investigation that Baba

Gurdip Singh and Rajpal Kaur were present, however, they were not cited as

prosecution witnesses and were never examined.

Considering the fact that there are certain allegations in the

statements of PW1 and PW2 that deceased was maltreated by the appellant

Rajesh Kumar, it is held that it was a case falling under Section 498A IPC and

not under Section 306 IPC. Since the appellant has already undergone 01 year, 08

months and 06 days of actual sentence and 02 years, 01 month and 17 days of

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total sentence including remission; he is not previous convict; he has not misused

the concession of bail; he has to look after two minor children and also in view of

the fact that he has faced the agony of protracted trial since 2011, the sentence

undergone by the appellant is reduced to the period already undergone by him,

while convicting him under Section 498A IPC with a fine of Rs.2,000/-. The

appellant shall deposit the fine of Rs.2,000/- before the Chief Judicial Magistrate,

Bathinda within a period of 04 months from today.

With the aforesaid modification, present appeal is disposed of.

[ ARVIND SINGH SANGWAN ]
25.11.2017 JUDGE
vishnu

Whether speaking/reasoned Yes/No

Whether reportable Yes/No

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