KHEM SINGH Vs. STATE OF HIMACHAL PRADESH

JUDGEMENT

(1.) This is an appeal against the judgment dated 28-11-1996 passed by the learned Additional Sessions Judge, Handi whereby appellant-accused (hereinafter referred to as the 'accused') has been acquitted of the charge under Sections 302, 498-A and 201 of the Indian Penal Code, but has been convicted for the commission of an offence punishable under Section 306 of the Indian Penal Code and has been sentenced to rigorous imprisonment for 3 years and to pay fine in the sum of Rs. 2,000/-. In default of payment of fine, the accused has been directed to undergo further simple imprisonment for 6 months.

(2.) Briefly stated case of the prosecution is that Soma Devi (since deceased) married the accused about 21/2 years before June, 1995. It was a love marriage and the accused, at that time, had another living wife, namely Nirmala Devi (PW 9). After the marriage, she has been residing with the accused. On June 26, 1995 a telephonic information was received in Police Station, Gohar from Constable Bhola Shanker of police post Janjhali that Soma Devi had committed suicide in suspicious circumstances. The information was recorded in the daily diary, a copy whereof is Ex. PO. Thereafter, A.S.I. Mast Ram (PW 17), Incharge, police post Janjhali, who was present at Police Station, Gohar, along with a photographer and other police officials went to Tipradhar, on the way, PW 1 Paras Ram, father of the deceased-Soma Devi, met him and made a statement Ex. PA under Section 154, Cr. P. C. which was recorded by A.S.I. Mast Ram, it has been stated in the said statement that after marriage, relations between Soma Devi (deceased) and accused remained cordial for some time and a son was borne out of the wedlock. However, after the accused was released on bail in a kidnapping case registered at Police Station, Gohar, he started harassing the deceased and used to goad her to bring money from her parents' house and to transfer the land given to her by her father in his name. On this count accused had been often beating her with the result that Soma Devi would go to her parents' house. Her father, Paras Ram, after giving her some money and clothes etc. would send her back. In the month of May, 1995 accused drew a sum of Rs. 8,000/- from the Post Office, which was due on Indira Vikas Patra in the name of the deceased by taking her to the Post Office under threat. The amount, so received, was spent by the accused. About 9 or 10 days before the occurrence, when Soma Devi had gone to her parents' house, she informed her father that accused was asking her to get the parental land transferred or to ask for the price thereof from her father. Paras Ram told Soma Devi that she could inform the accused to get the land partitioned and have the land of his daughter's share. Thereafter, Soma Devi returned to her matrimonial house on 19-6-1995. On 25-6-1995 at about 2.00 p.m. Lila Dhar, elder son of the accused and Nand lal came to the house of Paras Ram and informed him that Soma Devi was ill and he was called to the village Tipradhar. On further inquiries made in this regard, Liladhar informed PW 1 that Soma Devi had committed suicide by hanging. Thereafter PW 1 and others left for Tipradhar. For the night, they stayed in the house of Pradhan Das Raj and on the next day morning along with Pradhan they reached in the house of accused. Accused informed them that at about 7.00 a.m. Soma Devi left the house taking a Kilni and Rassi and went towards fields. When the accused went out to search for her, he found her hanging from a fallen tree in the nullah. Thinking that she might be alive, he untied the rope and kept Soma Devi in the nullah, then came back to the village and went to the spot again along with Tej Singh and Som Krishan (PW 14) and brought the dead body home. It has been further stated in the statement Ex. PA that the accused used to harass and beat deceased to secure money and transfer of the land and that as a consequence thereof Soma Devi had committed suicide. On the basis of the said statement, F.I.R. Ex. PV was recorded under Sections 304-B and 498-A of the Indian Penal Code in Police Station, Gohar, Marg reports Ex. PC and Ex. PD were prepared, and the postmortem of the body of Soma Devi was got conducted. Dr. Jiwa Nand (PW 4) and Dr. R. P. Tandan conducted the postmortem of dead body of Soma Devi and issued postmortem report Ex. PE. At the time of postmortem the following was observed by the doctors conducting the postmortem:__1. Average built body of young female, wheatish complexion. Rigor mortis was in passing off stage. Lervee were present over mouth and nostrils, Bloodstained fluid coming out of mouth. She was wearing blackishhalf sleeve jacket, 2. Brownish shirt, Shitish chekdar Pajama with patches of clothes, Churis, Nathni and Anguthis were handed over to the mother of deceased.Hypostasis was present over the back of neck whole back of chest and abdomen, on thighs mark on the posterior aspect, fixed, bluish purple in colour.Right eye was closed and left eye was oedmatus lacerated with foul smelling dark coloured blood coming out of sockets.Both lips, nostrils were blackened, tongue was pushed back. There were multiple small laceration on inner side of both lips, more on the upper side against central incisors. A black colour patch on the right side of face along angle of mouth 4 x 4" in size of irregular shape.Bleeding was present from mouth, nostrils and ears.Gums were also showing multiple small laceration on both jaws.Two abrasions with underlying bruise brown in colour were present in the face (rigtht side), one over maxilla and other opposite right angle of mouth at the distance of 5".A yellow dry, hard abrasion marks on neck on the right side extending to left side of neck. This mark was brownish on left side of neck, superficial, irregular in shape, 2 to 3" wide at places extending to the back of left ear. The mark encircling the neck in front above thyroid cartilage but absent on the back.After giving superficial incision on the mark the underline skin was normal. There was no injury to the underlying muscles and neck spructures-Superficial skin above and below the discoloured mark was normal. No antemortem injury to carotid artery or underlying neck structure. The mark present over neck was not corresponding to the legature material (Rope) produced by the police. The rope was without any knot, Hyoid bone was not fractured.Abdomen ExaminationAbdomen distendid, peritoneum normal, mouth and pharynx were full of naggotis and clotted blood, Tongue was also congested and dark brown.Stomach was empty containing about 5 cc brownish fluid, Mucosal memtrane of stomach showing may small petihcial haemorrhages in greater curvature.Small and large intestines were full of gases. Liver was congested, brown in colour. Spleen was congested.Both Kidneys were congested.Bladder was empty.External and Internal organs of generation normal.Examination of Cranium and Spinal cord.Hairs on scalp were soiled with dust particles and leaves and blood coming from mouth no injury to skull or vertebre.Brain and its memembrances were congested.Examination of ThoraxWalls and cartilages were normal.pleaurae were congested.Larynx and trachea congested. Trachea contained dark coloured particles with blood clots.Right lung congested oedematous and exude bloody froth on cut section.Left lung was congested, oedematous and exudes blood froth on cut section. Pericardium congested, Heart full of fluid blood, large vessels etc. normal. No injury to any bone or joint.

(3.) According to the opinion given by the doctors conducting the postmortem the deceased died due to asphyxia. Final opinion was, however, reserved till the receipt of the report of chemical analyst. The viscera preserved by them and the wearing apparels of the deceased found on her person at the time of postmortem were sent to the State Forensic Science Laboratory, Shimla. However, as per report Ex. P-A/4 received from the said laboratory, no poison or diazopam was detected in the viscera. The final opinion given by them after receipt and perusal of the report received from the State Forensic Science Laboratory is Ex. P.-Z/4. They have opined that deceased died due to asphyxia due to smothering. During the course of investigation rope lying near the dead body of Soma Devi was taken in possession by the police vide memo Ex. PB. On interrogation, accused made disclosure statement about potassium permagnate Ex. PF and got one plastic phial containing potassium permagnate recovered vide Ex. PH. He made another disclosure statement Ex. PG about the diazopam tablets in his possession and pursuant to the said statement 4 diazopam tablets recovered from his bag vide memoEx. PJ. The wearing apparels, the accused was allegedly wearing at the time of occurrence, were also taken in possession by the police vide memo Ex. PL. On production by the accused, shoes and clothes of the deceased were also taken in possession by the police vide memo Ex. PN. It was also found during the course of investigation that Nirmala Devi, first wife of the accused and her minor children had filed a petition under Section 125 Cr. P.C. against the accused claiming maintenance therein which was awarded by the learned Judicial Magistrate Ist Class, Karsog vide his order dated 23-4-1994. Accused preferred a revision petition against the said order wherein parties entered into compromise in the Court of learned Additional Sessions Judge, Mandi on 19-5-1995. As per this compromise accused had agreed to keep his wife Nirmala Devi and minor children Maina Devi, Om Chand and Tula Wati in his house, vide his statement Ex. PR. A certificate Ex. P-9 regarding registration of the accused as a practitioner in Ayurveda and Unani system of treatment was also taken in possession by the police vide memo Ex. PM. The wearing apparels and other clothes of Soma Devi were taken in possession by the police during the course of investigation and blood sample of Soma Devi was also sent to the State Forensic Science Laboratory and as per report Ex. P-Z/5 received from the said laboratory, blood sample was found to be human blood and blood stains were found on shirt and jacket. No blood was detected on other articles. It appears that the group of human blood so found could not be ascertained. Investigation led the Investigating agency to form an opinion that this was a case under Sections 302, 201 and 498-A of the Indian Penal Code. Hence the officer-in-charge, Police Station, Gohar on completion of investigation submitted a charge sheet against the accused.