State of H.P. vs Jiwa Ram

Deepak Gupta, J.—This appeal by the State is directed against the judgment dated 7.10.1994 passed by the learned Additional Sessions Judge (I), Kangra at Dharamshala in Sessions Trial No. 8/93 whereby he acquitted the accused of having committed offences punishable under Sections 306 and 498-A of the Indian Penal Code.

The prosecution case, in brief, is that the deceased Kaki Devi was married to the accused Jiwa Ram sometime in the year 1973. Three children were born out of this wedlock. The accused-husband was employed as a constable in the Central Industrial Security Force and at the relevant time was posted at Nangal. According to the prosecution, the relations between the parties were cordial for about eight to ten years after the marriage. Thereafter, the husband started levelling false allegations of unchastity against the deceased. Despite being advised by his inlaws, he did not desist from making such allegations. About one year prior to the occurrence which took place on 18.10.1991, the accused gave beatings to the deceased on 20.10.1990 and the matter was reported to the police. However, the accused left his home for the place of his posting on the very next day and when he again came back, the matter was patched up. According to the prosecution, just prior to the occurrence, the accused had summoned his father-in-law to Baijnath where the accused repeated the allegations of unchastity against the deceased in her presence. The deceased refuted such allegations. The deceased was missing from the matrimonial home since 14.10.1991. A couple of days later, the matter was reported to the Pradhan of the Gram Panchayat by the accused and then they sent an application Ex.PA to the police on the basis of which, Daily Diary Report, Ext.PQ was recorded. Four days later, on 18.10.1991, the dead body of deceased Kaki Devi was found hanging from a tree at a remote and desolate place on a steep slope (Dhank). This information was recorded by the police in the Daily Diary Report, Ext.PR. FIR, Ext.PS was registered on the statement of the father of the deceased, Sh. Waziru which was recorded u/s 154, Code of Criminal Procedure The police thereafter, carried out the investigation. The dead body of the deceased was recovered and was sent for post mortem. Some cassettes and other articles found at the spot were taken into possession by the police. The post mortem of the dead body was conducted by PW/7, Dr. K.C. Kalyan and it was opined that the cause of death was asphyxia resulting from hanging. Certain letters written by the accused to PW/4 Julphi Ram, PW/2, father of the deceased and to the deceased herself were taken into possession. The specimen handwriting of the accused was also taken. Dr. B.R. Sharma, handwriting expert, vide his report Ext.PW16/B has opined that both the specimen writing and disputed writing are of the same person, i.e., the accused. After completing the investigation, a challan was filed in the Court and the accused was summoned. The accused was charged for the offence detailed here-in-above. He pleaded not guilty and claimed trial. After trial, the accused has been acquitted. Hence the present appeal.

As noted above, the deceased committed suicide after 18 years of her marriage. According to the prosecution, two acts of cruelty were meted out to the deceased by the accused. Firstly, that the accused levelled false allegations of unchastity against the deceased which forced her to commit suicide and secondly, that he gave her beatings on 20.10.1990 which was also one of the reasons which led the deceased to commit suicide.

Firstly, we take up the charge of the prosecution that the accused used to level false allegations of unchastity against the deceased. PW/2, the father of the deceased in his statement has clearly stated that the accused started mis-behaving with his daughter and levelled false allegations of unchastity against her. He also stated that the accused had been writing letters to him levelling allegations of unchastity against Smt. Kaki Devi, deceased. He also stated that about 2-3 days prior to 14.10.1991, his son-in-law and daughter called him to Baijnath where also the accused levelled the allegations of unchastity against the deceased. This witness also stated that when the body of the deceased was recovered, two cassettes were also recovered and the police had played these cassettes on the spot and the voice in those cassettes was that of Kaki Devi. In cross-examination, this witness admitted that Kaki Devi had separated from her inlaws, i.e., the parents of the accused, after 10 to 12 years of the marriage.

PW/4 Zulfi Ram is the cousin of the accused. According to him, the relations between the accused and the deceased were cordial. He stated that he had informed the accused about 12-13 years back that one Roomi Ram who is the brother-in-law of the accused, stayed for a night in his house in his absence. He also stated that Roomi Ram in the presence of a number of persons including this witness stated that Kaki Devi was a woman of easy virtue and was having extra marital relations. He further stated that thereafter, the accused questioned Roomi Ram by talking to him separately, and in fact, reprimanded him for calling his wife unchaste. According to this witness, after this incident, the accused used to question his wife about her character. This witness has proved a letter, Ext.PG written to him by the accused. This letter was written in the year 1986. A perusal of this letter shows that in fact, the accused has reprimanded this witness for defaming the character of his wife. He has asked this witness either to prove the defamatory allegations or be ready to face the consequences. It is, therefore, apparent that the accused himself was not levelling the allegations of unchastity against his wife. However, there is sufficient material on record to show that the accused had some doubt with regard to the fidelity of his wife. This doubt arose on account of what PW/4 had told him. It was not as if this doubt was only a figment of his own imagination. His doubt regarding the unchastity of his wife may or may not be true but it cannot be said that the husband had no reason whatsoever to doubt her chastity.

The accused also wrote a letter to his father-in-law, PW/2 Sh. Waziru Ram, Ext.PK. Though outside the inland letter, it is mentioned that it is sent by Kaki Devi but the language of the letter clearly shows that it has been sent by the accused. This is also the opinion of the handwriting expert. This letter was written in the year 1987. Again the accused in the letter stated that his inlaws are helping his wife. He also wrote that his children on seeing the fights between the wife and husband get very upset and he, i.e., the accused is on the verge of dying. He stated that he even went to the extent of beating his own parents but he could not extract the truth.

Ext.PJ is a letter written by the accused to his wife in the year 1991. In this letter, he clearly stated that he wanted to go to the root of the matter. He wrote that it is the wife who knows what is the truth. He has requested her to tell him the truth. The letter brings out the anguish of the accused with regard to the allegations of unchastity being levelled against his wife by the villagers. He states that he will support his wife even if she has at any time been unfaithful to him so long as she agrees to live with him in future. Not only this, he offered her another solution. His offer was that if she came to his house, handed over the children to him, he alongwith his children would walk out of his house and he would transfer his entire landed property in the village to the name of his wife. This letter does not support the prosecution at all. It clearly shows that the husband wanted to live happily with his wife. No doubt, because of the allegations levelled by PW/4 and some other villagers, he did doubt her fidelity but he was willing to forgive his wife and forget the past.

A perusal of these three letters clearly shows that from the year 1986 or even earlier, there was a doubt in the mind of the accused with regard to the fidelity of his wife. The accused still wanted to save his marriage. Even in the last letter written to his wife in the year 1991, he does not, in any way, level any direct allegation of unchastity against his wife. He only asked her to tell the truth. The letters which are contemporaneous evidence on record do not indicate that the husband ever wanted to separate from his wife.

The story now set up by the prosecution appears to be false. It was not the husband who had levelled allegations of adultery against his wife but it is PW/4 and other villagers who informed the accused that somebody had come to his house and stayed in the house in his absence during the night hours. Thereafter, he questioned his wife.

Another important factor is that even if these allegations were false, the same were continuing from 1986. Thereafter, the wife and the husband lived together. They had also gone to Baijnath, a couple of days prior to the incident. Whereas according to the accused, his wife called her father but according to PW/2, it was the accused and his wife who called him there.

Assuming for the sake of argument that the accused had levelled certain allegations of unchastity against the deceased, the question that arises is whether there was some legitimate reason behind them or not. Even PW/4, the prosecution witness gives a reasonable cause to the accused who was staying away from his village to doubt the character of his wife. In such circumstances, if the husband wanted to question his wife, it could not be deemed to be an act of cruelty within the meaning of Section 498-A of the Indian Penal Code.

The other allegation is that the accused gave beatings to the deceased on 20.10.1990. The accused has examined one witness in defence. This witness has proved the record of N.F.L. Nangal. According to this witness, from 1st October, 1990 to 30th October, 1990, Jiwa Ram never proceeded on leave. This witness further stated that the personnel of the security staff cannot go outside the unit without obtaining an out pass for an absence of more than six hours. It would be impossible for the accused to visit his village and come back to Nangal within six hours.

Even otherwise, there is doubt with regard to the complaint itself. According to PW/1, President of the Gram Panchayat, in the year 1990 Kaki Devi reported to him that she had been beaten by her husband. He clearly stated that other than this complaint, Kaki Devi had made no other complaint against him.

According to PW/5, brother of the deceased, about one year prior to the death of Kaki Devi, the accused had come to the village. He gave beatings to her and on the next morning, left the village for his duty. This witness stated that the son of the accused informed him about the accused beating up Kaki Devi and thereafter, they went to the Pradhan and lodged the complaint who, in turn, asked them to lodge the complaint with the police. Two months later, Jiwa Ram came to the village and filed a case in the Court against Kaki Devi alleging that she was residing in the parental house. This criminal case filed by the accused was also compounded and then Kaki Devi started living with the accused. It would not be unreasonable to hold that the matters were settled and the parties condoned each other''s cruelties and then started living together.

PW/9, Sh. Diwan Singh stated that on 20.3.1991 he came to the Police Station, Baijnath wherein in his presence, a compromise was effected between the deceased and the accused. He stated that he signed the compromise as a witness. This compromise is Ext.PP. Though according to this witness, the accused and Kaki Devi also signed the compromise, a perusal of this compromise shows that this is neither signed by Kaki Devi nor by Jiwa Ram. It is signed by the witnesses namely Panju Ram, Julfi Ram and Dina Nath only. Therefore, this compromise cannot be believed and taken into consideration.

We are constrained to observe that neither the police nor the Court performed their duties to find out the truth. Admittedly two audio cassettes were recovered when the dead body of Kaki Devi was found. These cassettes were tied in a ''Dupatta''. Seizure memos with regard to those audio cassettes were prepared. No transcript of what was stated in the audio cassettes was prepared by the police. These audio cassettes were played in the Court and even the Court did not perform its duty and did not record what was stated in the audio cassettes. It was only mentioned that the voice in the cassettes was of Kaki Devi. When the brother of the deceased identified the voice of his sister, either the Court should have noted down the contents of audio cassettes or should have sent the same to some laboratory.

When this matter came up before this Court, it was noticed that the deceased was carrying two audio cassettes and the contents of these cassettes have not been transcribed and, therefore, the said cassettes which were exhibited as Exts.P3 and P4 were directed to be produced in the Court so that the transcription could be prepared. Sadly, when the orders were conveyed to the concerned authorities, it was reported that in fact, those audio cassettes had been destroyed. We noted this in our order dated 23.2.2010 and directed the State to find out as to how this had happened. Now an affidavit has been filed by the Superintendent of Police, Kangra at Dharamshala in which it is stated that when the MHC Malkhana Muharrar, Palampur was asked about the aforesaid case property, he told that the same had been deposited with the Malkhana Muharrar, Dharamshala on 3.6.1994. Alongwith this affidavit, a copy of the preliminary inquiry report has also been filed, relevant portion of which reads as follows:

It has been found during the enquiry that case property of case FIR No. 116/91 dated 18-10-91 u/s 306, 498 IPC was sent from PS-Baijnath to Malkhana Muharrar Palampur through RC No-215/95 dated 28-9-93 vide which 07 articles related to the case were mentioned in Road Certificate (enclosed). The Malkhana Muharrar Palampur further deposited the case property with District Malkhana Muharrar, Dharamshala on dated 3-06-94 and in this regard, an entry was made accordingly under head No-141/120 in the register. On dated 16-6-07, vide letter No-13, Malkhana Muharrar HC Bhagat Singh sent a letter in the office of the SP/Kangra regarding approval for the disposal of the case property and he has also mentioned no appeal is pending in the Hon''ble High Court in these cases. On this, the then SP. Kangra directed to dispose the case property in the presence of Addl.S.P. Kangra. A list of case property to be disposed off was also enclosed with the abovementioned letter in which 71 cases were mentioned of which the case property was to be destroyed and on serial No. 6 was case property of case FIR No. 116/91 PS, Baijnath. It was shown that accused were acquitted in this case on 7.10.1994. The list & the letter are enclosed herewith,

This preliminary enquiry report prima facie holds only Head Constable Bhagat Ram, District Malkhana Muharrar, Dharamshala responsible for the destruction of the case property and a regular departmental enquiry was ordered to be conducted against him. We do not think that just by holding the lowest man in the hierarchy responsible, the Department can exempt the senior officials and take them outside the purview of law. Case property cannot be destroyed in such a casual manner. Admittedly the appeal was pending in this Court. Was the word of the Malkhana Muharrar Head Constable final in the matter? Was it not the responsibility of the senior official(s) to verify the facts stated in the letter of the MHC? The MHC had sought permission of the higher authorities to destroy the properties mentioned in his letter. It was the duty of the Superintendent of Police to have first gone through the averments made in the letter, verify the contents of the letter and then order the destruction of the property. There are rules with regard to the destruction of case property wherein duties are cast on different officials and we find that no reference in this preliminary enquiry report has been made to such rules. We also find that the Superintendent of Police, Kangra directed that the case property be disposed of in the presence of Additional S.P., Kangra. Was it not the duty of the Addl.S.P. Kangra to verify the record of each case while disposing of the case property? Another shocking aspect is that this preliminary enquiry was conducted by the Addl.S.P., Kangra. He, in fact, could be said to be one of the delinquent officials. How could he be expected to conduct an impartial enquiry? We, therefore, do not accept this preliminary enquiry report.

Keeping in view the gravity of the misdemeanor, in as much as, the case property in a case which is pending in this Court has been destroyed, we direct the Principal Secretary (Home) to ensure that an independent inquiry is conducted by an official not below the rank of Inspector General of Police and this enquiry report should be submitted in this Court within two months from today.

The appeal is dismissed. Bail bonds, if any, furnished by the accursed are ordered to be discharged. However, the appeal be listed before us on 15th July, 2010 by which date the Principal Secretary (Home) must file his personal affidavit as to what action has been taken in the matter.