BALVIR SINGH Vs. STATE OF UTTARAKHAND

JUDGEMENT

(1.) APPELLANT Balvir Singh (A1) and Smt. Maheshwai Devi (A2) were arraigned to face trial for offences punishable under Section 498A read with Section 34 and Section 302 read with Section 34 of I.P.C. By the judgment and order under appeal, Al has been convicted for offence punishable under Section 302 of I.P.C. and also for offence punishable under Section 498A read with Section 34 of I.P.C., whereas A2 has been convicted for offence punishable under Section 498A read with Section 34 of I.P.C. In course of trial, it has come on evidence, which is not in dispute, that the principal home of A1 and A2 was at Kotdwara, but for the purpose of his profession A1 used to reside at Delhi. There is also no dispute that the victim, the wife of A1 also used to reside with A1 at Delhi, whenever she was taken there by A1 and during the remaining time she used to remain at Kotdwara in the house of A1 and A2. In order to prove the charge under Section 498A read with Section 34 of I.P.C., the prosecution relied upon the evidence tendered by Virendra Singh, father of the Victim, who deposed as PW1 and of Balbir Singh, the uncle of the victim, who deposed as PW4. Both of them stated, withstanding elaborate cross -examination that six months after the marriage of the victim with A1, the victim was subjected to cruel treatment for her failure to impress upon PW1 to give a dowry of Rs. 1 lac. The said contention stood also corroborated by the evidence of Harendra Singh (PW3) who was summoned to give evidence under Section 311 of the Code of Criminal Procedure and also by two letters purportedly of the victim. In one of these letters (Ext.Ka -1), which was written some time in 2004, the victim had clearly stated that she is being tortured by A1 and A2 for non -fulfillment of their dowry demand. In the other letter, (Ext.Ka -2), the victim is requesting PW1 to return letters similar to that of Ext.Kal as by writing such letters she made mistake. Ext. Ka -2, therefore, demonstrates that the victim had written similar letters as that of Ext. Ka -1 in addition to Ext. Ka -1. The prosecution, however, did not make any endeavour to prove independent of oral evidence that Exts. Ka -1 and Ka -2 were, in fact, in the hand writing of the victim. It was suggested on behalf of Al and A2 that Exts. Ka -1 and Ka -2 are not in the handwriting of the victim. Since negative cannot be proved, there was no obligation on the part of A1 and A2 to establish and prove that Exts. Ka -1 and Ka -2 were not in the handwriting of the victim. However, it was not suggested on behalf of A1 and A2 that the victim was illiterate and was unable to write in the language in which Exts. Ka -1 and Ka -2 were written. Furthermore, A1 and A2 placed reliance upon Ext. Ka -2 for the purpose of establishing that the victim, in that letter, expressed her mistake in writing letters as that of Ext. Ka -1. In a situation of this nature, it would not be permissible on the part of A1 and A2 to approbate and reprobate and, accordingly, we hold that in a situation of this nature, we can certainly proceed on the basis that Exts. Ka -1 and Ka -2 were of the victim. Therefore, harassment for non -payment of dowry was not only established before the Court below by oral evidence, the same was also corroborated by the victim in writing. There is, therefore, no scope of interference with the findings recorded by the Court below pertaining to offence punishable under Section 498A read with Section 34 of I.P.C. It would be appropriate on our part, at this stage, to remind ourselves that it was urged on behalf of A1 and A2 that the F.I.R. was belated and the same was filed in consultation when deliberately allegations pertaining to offence punishable under Section 498A were incorporated. The fact remains that in the instant case, the F.I.R. lodged by PW1 was not registered by the Police Station and, accordingly, PW1 had to take recourse to file an Application under Section 156(3) of the Code of Criminal Procedure. Background facts, upon which such Application could be filed, were all present in the Application. If those facts were disputed by A1 and A2, they, in course of trial, could highlight the same, but that was not done. In such a situation, it would not be appropriate on our part to hold that there was any delay in filing the F.I.R.

(2.) IN the chargesheet it was clearly held out that the death, in the instant case, was by poisoning. No sooner, the death was reported, PW1, looking at the dead body, insisted for an inquest and the same was done. In course of inquest, he expressed doubt as to the cause of death and demanded post -mortem. Accordingly, post -mortem was done. The doctor, who conducted post -mortem, could not determine the reason for the death. He, accordingly, preserved a part of the heart and the viscera of the deceased for the purpose of analysis. Viscera was sent for analysis and Forensic Science Laboratory, Agra, to whom the same was sent, reported that the same contained poison known as "Aluminium Phosphide". All these facts were in the charge -sheet. The death, according to the chargesheet, had taken place at Delhi, when A1 alone was present with the victim. It is A1, who caused the dead body of the victim to be brought to Ratanpuri, Kotdwara. It was not the contention of Al that the victim, at any point of time, had any suicidal tendency or that he suspects that the victim committed suicide. It was the contention of A1, as is evident from the trend of cross -examination of the prosecution witnesses, and, in particular, suggestions given to the prosecution witnesses that the victim was suffering from heart disease, for that, matter required frequent treatment and administration of medicine. It was suggested that such medicine, so administered, turned into the aforementioned poison. That being an assertion on behalf of A1, it was he, who was required to establish the same by tendering adequate evidence, which he miserably failed. A dead person, whose cause of death was by poisoning, was, accordingly, found on the lap of A1. A1 had special knowledge pertaining thereto. He failed to disclose anything in relation thereto. The Court below, in the circumstances, has taken adverse inference against A1 under Section 114(g) of the Evidence Act. We think that the Court below was entitled to take such inference in the backdrop of the case as depicted above.