Pawan
Kumar Vs. State of Haryana [2001] Insc 138 (13 March 2001)
Umesh
C. Banerjee & K.G. Balakrishnan Banerjee.J
L.T.J
The
appellants, charged for the offences under Sections 306, 498A, 201 and 193 of
the Indian Penal Code, were found guilty of offences by the Additional Sessions
Judge Kurukshetra under Sections 306 and 498(A) of the Code and were sentenced
to undergo R.I. for six years. The High Court though dismissed the appeal qua
appellant No.1, Pawan Kumar but as regards the appellant Nos. 2 and 3,
sentences were reduced to six months under both counts respectively and it is
this order of dismissal which is under challenge before this Court in the
appeal by the grant of special leave.
Before
adverting to the rival contentions, be it noted that the entire matter hinges
on circumstantial evidence. There is also however existing on record, a dying
declaration, but its effect on the matter, shall be discussed shortly hereafter
in this judgment. Incidentally success of the prosecution on the basis of
circumstantial evidence will however depend on the availability of a complete
chain of events so as not to leave any doubt for the conclusion that the act
must have been done by the accused person. While however, it is true that there
should be no missing links, in the chain of events so as far as the prosecution
is concerned, but it is not that every one of the links must appear on the
surface of the evidence, since some of these links may only be inferred from
the proven facts. Circumstances of strong suspicion without however any
conclusive evidence are not sufficient to justify the conviction and it is on
this score that great care must be taken in evaluating the circumstantial
evidence. In any event, on the availability of two inferences, the one in favour
of the accused must be accepted and the law is well settled on this score, as
such we need not dilate much in that regard excepting however, noting the
observations of Srivastava (AIR 1992 SC 840) wherein this Court in paragraph 9
of the report observed:- The Court has, time out of number, observed that while
appreciating circumstantial evidence the Court must adopt a very cautious
approach and should record a conviction only if all the links in the chain are
complete pointing to the guilt of the accused and every hypothesis of innocence
is capable of being negatived on evidence. Great care must be taken in
evaluating circumstantial evidence and if the evidence relied on is reasonably
capable of two inferences, the one in favour of the accused must be accepted.
The circumstance relied upon must be found to have been fully established and
the cumulative effect of all the facts so established must be consistent only
with the hypothesis of guilt. But this is not to say that the prosecution must
meet any and every hypothesis put forward by the accused however far-fetched
and fanciful it might be. Nor does it mean that prosecution evidence must be
rejected on the slightest doubt because the law permits rejection if the doubt
is reasonable and not otherwise.
The
other aspect of the issue is that the evidence on record, ascribed to be
circumstantial, ought to justify the inferences of the guilt from the
incriminating facts and circumstances which are incompatible with the innocence
of the accused or guilt of any other person. The observations Punjab ( AIR 1987 SC 350) lends
concurrence to the above.
Referring
to the prosecution case at this stage it appears that Ekta, the sister of Sudarshan
Kumar was married to Pawan Kumar appellant No.1. After four months of the
marriage, Ekta went to Sudarshan Kumar alongwith her husband Pawan Kumar and
told him that a sum of Rs.10,000/- was being demanded by Pawan Kumar, his
father and mother. Sudarshan promised to pay that amount after a couple of days
after arranging for it. Accordingly, three days thereafter Sudarshan
accompanied by one Jag Pal Saini went to the house of the accused at Shahbad
and paid the amount of Rs.10.000/- to Smt. Kaushalya Devi. After about one
year, Ekta again came to the house of Sudarshan with a definite grievance about
being pestered for money by her husband and parents-in-law. At that time, she
stayed at the house of Sudarshan for eight months and never wanted to go back
by reason of consistent harassment with beating. As a matter of fact, a feeling
of being fed up together with despondency has completely over-powered her.
Subsequently, a panchayat was held and at the asking of village Panchayat, Sudarshan
agreed to send and did send Ekta with Ram Asra to the house of her
parents-in-law at Shahbad. However, the appellants continued harassing Ekta for
dowry. Sudarshan came to know of this fact whenever he visited Ekta at Shahbad
and as and when she came to meet her parents at karera Khurd. It is further the
case of the prosecution that about two months prior to the occurrence, Sudarshan
booked a maruti van for himself and appellant-Pawan Kumar came to know about
it. He went to the house of Sudarshan and told him that either the said van be
given to him or he may book another van for him.
Sudarshan
however, refused to accede to the demand. Pawan Kumar went back leaving the
impression that it would not bring good result. On 17.9.1985, Sudarshan
received a telephonic message that Ekta was burnt. Sudarshan, accompanied by
Dr. Krishan Lal, Sham Sunder and mother of Ekta went to Shahbad. On reaching Shahbad,
they came to know that Ekta had been taken to P.G.I., Chandigarh by the accused. Sudarshan along
with his companions reached P.G.I., Chandigarh and found that Ekta had died. He took the dead body and brought it to Shahbad
and lodged a report to the police. The report was recorded by ASI Fateh Singh
and he took up the investigation of the case. He reached at the spot. At that
time, the kitchen of the house was locked and one ASI was put on guard. The
dead body along with the inquest report was sent for post mortem examination.
On the next day, the spot and the dead body were got inspected by the team
summoned from Forensic Science Laboratory, Madhuban. Thereafter, the ASI
inspected the spot himself and prepared a rough site plan. He took into
possession certain articles, which were sealed. The statements of other
witnesses were recorded. The appellants were arrested. On the completion of
investigation, challan was filed. Thereafter the case was committed to the
Court of Sessions where the learned Additional Sessions Judge tried it and the
conviction as above was made by him.
Incidentally,
the defence has also led evidence to show that Ekta died of an accident and not
a suicidal death and on this score strong reliance was placed on the dying
declaration by Ekta made before the Police Officer. Though, however, dying
declaration is stated to be a got up document and not worth even the paper on
which it was written. The same is however noted herein below.
I was
married with Pawan Kumar S/o Ram Asra caste Arora R/o Sainda Mohalla, Shababad
about 4-5 years before. My husband is cloths dealer and his shop is situated in
Main Bazar Shahabad. We live together with our parents-in-law.
Today
in morning at about 8.30
AM my husband and my
father-in-law Ram Asra had already been gone at shop and my mother-in-law Smt. Kaushalaya
Devi also had gone to the house of neighbour for visit. I was alone at house.
Today at about 10 AM I was boiling the Milk in Kitchen
on a stove kerosene Oil was finished from the stove. It had taken a bottle of
kerosene oil which was lying in kitchen for filling up in stove. Then that
bottle of kerosene oil fell down from my hands and broken. The kerosene oil
from the bottle fell upon my cloths and on the burns stove, so that reason my
cloths get on fire on this I started crying on this a number of persons and
women came to the spot. They put off the fire from my clothes and from body.
Later on my husband reached there. I was brought in Civil Hospital Shahabad for
treatment. This fire set on due to broken the bottle of kerosene. No body have
fault in this matter.
This
fire was put on by chance and not I had put on fire by anybody. Statement heard
and it is correct.
Attested
LTI, Ekta Rani Sd/- Arun Kumar,ASI, PS Shahabad W/o Pawan Kumar 17.9.85 Mr. Sushil
Kumar, learned Senior Advocate contended that the sole issue in the matter
under consideration is whether the death of Ekta can be ascribed to be an
accidental death or a case of suicide? Needless to record that the High Court
negated the case of accidental death and held the appellants guilty of abetment
to the act of suicide and it is on this count that the appeal of the appellant
No.1 before the High Court was rejected whereas the two other appellants had
their sentences reduced.
In
support of the appeal it has rather emphatically been contended that the dying
declaration itself would negate any suicidal act, but depicted a clear
accidental incident resulting in the death. It is this dying declaration which
the learned Trial Judge, as also the High Court ascribed it to be not worth the
paper on which the same was written and does not deserve the credence of
acceptance of the same.
Peculiarities
are the ways which can however, easily be noticed: The kerosene on the stove
got finished as a result of which further filling of kerosene was required and
hence a bottle was taken, which accidentally slipped out and broken. But the factum
of the stove not having any kerosene, has been ignored, since absence of
kerosene would put off the ignition and there would be total extinguishment of
fire: The resultant effect of such an extinguishment mean and imply that one
would require a match stick to ignite the kerosene- since there is no automatic
flow of fire available. The fact, Ekta died of burn injuries stands admitted
which has been stated to be accidental and not suicidal. It is on this score
however, the prosecution laid evidence to depict that the accident could not have
happened as stated in the dying declaration and it has been an evidence created
to cover up the suicide. Strong reliance has been placed on the evidence of
Senior Scientific Officer Shri J.L. Gaur (PW.2) who in no uncertain terms ruled
out any accidental burn injury in the matter. On an examination of the body it
was observed that a part of the scalp, hair on the top of head eye brow, eye
lashes and public hair were burnt and singed. However hairs on the sides and
back of the head had escaped any injury. The body was burnt practically all
over excepting the feet and their soles.
Three
kerosene stoves were available in the kitchen, two being with sufficient fuel
for use and the other one lying totally idle in another corner of the room with
accumulation of dust on them. In any event, the third stove lying in the other
corner was not having even a smell of kerosene.
Pieces
of broken glass bottle with no smell of kerosene were available in the kitchen
and one of the bottom piece of bottle had fungus like deposit clearly
indicating non user of the bottle as a container of kerosene for quite
sometime.
Significantly,
there was a match box, a broken match box lying on the floor at a distance of
about four feet from the stove. The used sticks of match box were available
near the stove. The match box emitted smell of kerosene. PW.2 has also spoken
of non-availability of any milk or milk container even in the kitchen. The
further finding of PW.2 is that both the stoves were in working condition and
the air pressure valves of the stove were found in open position having the
lids of the tanks of the stove dry and tightly closed. PW 2 further spoke of an
unused funnel lying on the floor of the room which also did not have any
kerosene smell.
It is
for reasons as above that learned Sessions Judge and the High Court refused to
put any credence on the defence of accidental burn injury. If the accidental
injury is ruled out and which we also feel the same way as that of the other
two Courts, the obvious conclusion would be suicidal death and on that issue a
further question arises as regards abetment. An analysis of the evidence of
PW.3, Sudarshan Kumar (brother of the deceased) depicts the behavioural pattern
received at the in-laws place by Ekta.
Occasional
demand for money and failure to meet the same, however resulted in beating up
of the girl, Ekta, and as a matter of fact in September 1985 she came back to
the house of complainant all alone and this arrival, the complainant described
as the aftermath of torture which in fact did put her up in a bad shape.
Definite evidence is available on record that Ekta stayed with the complainant
for about 8 months and it is only thereafter the appellant No.2 wanted to take
back Ekta. The brother of complainant PW.3 however, pointedly refused though
after some persuasion and assurance of the father-in-law, in the presence of
some other members of the family, of proper treatment to the daughter-in-law,
the complainant agreed and Ekta thus went back to the in-laws place. Further
evidence however, records that there has been no improvement of the behavioural
pattern and she was subjected to dowry torture as also various abusive
treatment by reason of not being able to bear a child.
Incidentally,
the two families, namely the brides and grooms, related to each other and it is
on this score that learned Senior Advocate in support of the appeal contended
that dowry torture or even user of any abusive language were all figments of
imagination : The evidence however tell a different story - The torture
continued and reached its peak in July 1985 by reason of a booking of a Maruti
Van by the complainant which was asked to be delivered to the
accused/appellant, on refusal however, to comply with the demand for delivery
of the van by the complainant, the relationship was further estranged and PW 3
was given a warning as regards the events to follow and it is only thereafter
this incident of burn injury took place. A number of relatives were also
examined and their evidence corroborate this state of affairs as narrated by
the complainant PW.3.
The
learned Senior Advocate in support of the appeal further contended that the factum
of the hospitalization of Ekta in any event negates any ill treatment or
torture, but to be treated as a positive evidence of goodwill and affection. We
are however unable to record our concurrence therewith having due regard to the
evidence and other materials available on record. There is thus preponderance
of evidence of dowry torture and it is on this count that Section 113(A) of the
Evidence Act ought to be taken note of Section 113(A) reads as below:- 113(A).
Presumption as to abetment of suicide by a married woman.- When the question is
whether the commission of suicide by a woman had been abetted by her husband or
any relative of her husband and it is shown that she had committed suicide
within a period of seven years from the date of her marriage and that her
husband or such relative of her husband had subjected her to cruelty, the Court
may presume, having regard to all the other circumstances of the case, that
such suicide had been abetted by her husband or by such relative of her
husband.
Explanation;- For the purposes of this Section,
cruelty shall have the same meaning as in Section 498-A of the Indian Penal
Code (45-1860).
Incorporation
of Section 113(A) of the Evidence Act in the statute book, depicts a legal
presumption though however the time period of within seven years of marriage is
the pre-requisite for such a presumption. The circumstances as noticed
hereinbefore in the contextual facts and the materials on record substantiate
the requirements of Section 113 (A) and having regard to the language used in
Section 498 A of the Indian Penal Code there cannot be any hesitation in coming
to a finding that cruelty is written large as regards the conduct of the
appellant herein towards Ekta. Needless to state that Section 113(A) itself by
way of an explanation provides that cruelty shall have the same meaning as is
attributed under Section 498(A) of the Indian Penal Code which reads as below:-
(a) any
willful conduct which is of such a nature as is likely to drive the woman to
commit suicide or to cause grave injury or danger to life, limb or
health(whether mental or physical) of the woman; or
(b)
harassment of the woman where such harassment is with a view to coercing her or
any person related to her to meet any unlawful demand for any property or
valuable security or is on account of failure by her or any person related to
her, to meet such demand.
On the
wake of the aforesaid and by reason of the fact and the death of Ekta was
caused by burn injuries only and having considered the nature of injuries and
since one can not but rule out an accidental death as discussed herein before,
the death of Ekta cannot but be attributed to be suicidal on the basis of the
circumstances as is available on record with the situation existing and having
regard to statutory presumption, this Court can not but lend concurrence to the
opinion expressed by the High Court. The decisions of this Court as relied upon
by Mr. Sushil Kumar (viz. : Balwinder Singh v. State of Punjab [AIR 1996 SC 607]: Lakhjit Singh
& Anr. V. State of Punjab [(1994) Supp (1) SCC 173]: State of Punjab v. Gurdip
Singh & Ors.[1996 (7) SCC 163] Sharad Birdhichand Sarda v. State of Maharashtra
[1984 (4) SCC 116) do not however, advance the matter any further since each
case shall have to be dealt in the light of its own factual sphere and judicial
precedents do not render any assistance whatsoever by reason of the peculiar factual
matrix. In the facts of the matter under consideration, the circumstances
pointedly point out the accused as a guilty person as abettors and on the wake
of the aforesaid the order of conviction cannot be interfered with. The High
Court has been lenient enough in dealing with the appellant Nos.2 and 3 by
reducing the sentence, but since there is no cross appeal, we do not wish to
record any contra view as regards the sentence as well.
In
that view of the matter, this appeal fails and thus stands dismissed.
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