Summit Sood v. State of H.P.

Judgment

4. Summit Sood, son of Sh. Buta Ram Sood. Anuj Sood, son of Shri Buta Ram Sood. Smt. Chanchla Devi, wife of Sh. Buta Ram. Smt. Sarika Sood, wife of Anuj Kumar.

5. Buta Ram Sood, S/o Kirpa Ram. All residents of Cinema Road Joginder Nagar, District Mandi, H.P. (cid:133)Accused/respondents. Appeal under Section 378 of the Code of Criminal Procedure. Coram: The Hon(cid:146)ble Mr. Justice Deepak Gupta, Judge. The Hon(cid:146)ble Mr. Justice Rajiv Sharma, Judge. Whether approved for reporting?1 No. __________________________________________________________ For the appellant : Mr. Vivek Singh Thakur, Additional Advocate General. For the complainant For the respondents : : Mr. Rajnish Maniktala, Advocate. M/s. Vandana Kuthiala and Dushyant Dadwal, Advocates. --------------------------------------------------------------------------------- Rajiv Sharma, Judge: This appeal by the State is directed against the judgment dated 02.08.2004, passed by the learned Additional Sessions Judge-I, Kangra at Dharamshala, H.P. in Sessions Case No. 20-P/2004 (6-P/03), whereby the respondents, who were charged with and tried for offence punishable under 1 Whether the reporters of the local papers may be allowed to see the judgment? No. - 2 - Sections 498-A, 306-B read with Section 4 of the Dowry Prohibition Act, 1961, have been acquitted.

2. Case of the prosecution, in a nut-shell, is that marriage of Arti Sood, daughter of PW-2, Sh. Ashwani Kumar was solemnized with Summit Sood on 6th December, 2001. PW- 1, Dr. Vinay Mahajan, Medical Officer sent a ruka Ex. PW-1/A on 3rd March, 2002 at 5:50 p.m. to Police Station, Palampur. The same was entered in the roznamcha vide rapat No. 17, dated

03.03.2002. According to rapat, patient Arti wife of Sumit Sood had been brought to the hospital with the alleged history of consuming some poison. Thereafter, HC Narotam Chand and HHC Roshan Lal were sent to hospital to inquire into the matter. PW-11, Narotam Chand visited the S.D.H., Palampur and moved an application Ex. PW-11/A for medical examination of the patient and also to obtain the opinion of the doctor whether Arti Sood was fit to give her statement or not. According to him, the doctor opined that Arti Sood was fit to give her statement, which is Ex. PW-1/B on the application Ex. PW-11/A. Thereafter, he recorded the statement of Arti Sood, Ex. PW-1/E. According to her statement, the accused were harassing her and beating her repeatedly. She has consumed poison due to the harassment meted out to her by her in-laws. According to her, her in-laws were demanding dowry. Thereafter, an F.I.R. Ex. PW-5/A was registered. She died at 12:00 p.m. Thereafter, the investigation was handed over to ASI Rumal Singh (PW-14), who moved an application Ex. PW-1/C to the Medical Officer, S.D.H., Palampur for conducting the post mortem of deceased Arti Sood. PW-1, Dr. Vinay Mahajan has conducted the post mortem on the body. - 3 - According to the opinion of the doctor, Arti Sood died due to shock secondary to phosphate poison. The probable duration between the death and the post mortem was 24 hours. The spot map was prepared vide Ex. PW-12/B. Various samples, i.e., sample of stomach, small intestine and big intestine, liver, kidney, wearing apparels of deceased and sample of vomit of deceased Arti Sood were sent to the Chemical Examiner. The Chemical Examiner vide his report Ex.-PA, found particles of phosphate poison in the sample of stomach, small and big intestine, liver and kidney of the deceased. The investigating Officer also took into possession the prescription slip issued by Dr. Rajpal Singh (PW-17), Neurosurgeon, who treated the deceased and issued prescription slip Ex. PW-2/A, dated

13.12.2001. The investigation was carried out and the challan was put up after completing all the codal formalities.

3. The prosecution has examined as many as 18 witnesses. The statements of the accused were also recorded under Sections 313 of the Criminal Procedure Code.

4. The learned Additional Sessions Judge-1, Kangra at Dharamshala, H.P. acquitted the accused on 02.08.2004. Hence, this Appeal by the State.

Mr. Vivek Singh Thakur, learned Additional Advocate General and Mr. Rajnish Maniktala, learned counsel the complainant have strenuously argued prosecution has proved case against the respondents. According to them, the learned trial Court has not correctly appreciated the evidence led by the parties. - 4 -

6. Ms. Vandana Kuthiala, learned counsel for the respondents has supported the judgment dated 02.08.2004.

7. We have heard the learned counsel for the parties and gone through the records carefully.

8. In this case, the material witnesses are PW-1, Dr. Vinay Mahajan, PW-2, Sh. Ashwani Kumar, PW-3, Smt. Bimla Devi Sood, PW-7, Sh. Om Parkash, PW-8, Sh. Anil Kumar, PW-9, Smt. Pooja Sood, PW-10, Sh. Chandan Sood, PW-11, HC Narotam Singh and PW-17, Dr. Raj Pal Singh.

9. According to PW-1, on 03.03.2002, at about 5:45 p.m., Arti Sood was brought to the Hospital, Palampur with the alleged history of consuming poison. He sent a ruka, Ex. PW-1/A to the Station House Officer, Police Station, Palampur. Police came on the spot and thereafter, an application, Ex. PW-11/A was submitted to Medical Officer for medical examination of the victim. The post mortem was conducted on 04.03.2002. The cause of death was opined to be consumption of phosphate poison, which led to shock. PW-1 further deposed that the patient was drowsy, pulse feeble, BP not recordable, extremities cold, pupils bilaterally non specific reacting to light, gastric lavage was done and lavage preserved.

10. PW-2, Sh. Ashwani Kumar is the father of deceased. According to him, on 12.12.2001, Arti Sood informed him on telephone that she was upset and told him that she wanted to come to home. He went to the house of accused Buta Ram, where he met Buta Ram, Summit Sood and other family members. When he met his daughter, she started weeping and told him that the accused persons were harassing, maltreating - 5 - and taunting her for bringing insufficient dowry. She told him that the accused were demanding ‘1,00,000/-. He has written two letters to accused Buta Ram on 07.01.2002 and 22.02.2002. On 01.03.2002, Arti Sood again visited her matrimonial house at Joginder Nagar. Accused Buta Ram, his son Summit Sood, her brother-in-law and sister-in-law again maltreated her. According to him, his daughter has consumed poison due to the maltreatment and ill treatment given by the accused persons.

11. PW-3, Smt. Bimla Devi is the aunt of deceased Arti Sood. According to her, when Arti Sood met her, she told her that she did not feel good in the house of her in-laws and she used to weep and except this, she did not tell anything. She was declared hostile.

12. PW-7, Shri Om Parkash is the uncle of Arti Sood. According to him, he and his brother went to the house of accused Buta Singh, but he was not present in his house. On

04.02.2002, he alongwith his brother, Pardeep Sood and Hem Raj Sood again visited the house of accused. According to him, after the marriage, the accused started harassing the deceased and she was sent back to her father(cid:146)s house on the pretext of bringing insufficient dowry and the accused also demanded a sum of ‘1,00,000/-.

13. According to PW-8, Sh. Anil Kumar, the ring ceremony was solemnized on 06.12.2001. Sh. Ashwani Kumar, father of the deceased had given ornaments, clothes alongwith ‘51,000/- in cash. PW-2, Sh. Ashwani Kumar informed him on telephone that his daughter Arti Sood was not mentally fit and he was taking her to Pathankot for treatment. - 6 -

14. PW-9, Smt. Pooja Sood has deposed that her sister was harassed by her in-laws. Her father has brought her sister to his house from her in-laws(cid:146) house. In the house, her sister told her that the accused persons gave beatings to her and harassing her for bringing insufficient dowry.

15. PW-10, Sh. Chandan Sood is the brother of deceased Arti Sood. According to him, after 6-7 days of the marriage, there was a telephone call from the house of in-laws of his sister, Arti Sood that she was upset and his father should take her to his house. Thereafter, his father went to the house of accused and took his sister to his house. In their house, his sister used to tell her that the accused were harassing her on the pretext of bringing less dowry and also made the demand of ‘1,00,000/- from his father.

16. PW-11, HC Narotam Singh has recorded the statement of Arti Sood, Ex. PW-1/E on 03.03.2012. According to him, he moved an application Ex. PW-11/A to the Medical Officer in Civil Hospital, Palampur to obtain the opinion of doctor as to whether Arti Sood was fit to give her statement or not. He read over all the contents to Arti Sood, who accepted it to be true and thereafter put her signature Ex. PW-1/F on her statement Ex. PW-1/E. At that time, Dr. Vinay Mahajan was also present there. He also put his signature on Ex. PW-1/E.

17. PW-17, Dr. Raj Pal Singh has diagnosed the ailments of the deceased, i.e., transitional situational reaction (TSR). The investigation has been carried out by PW-18, Dy. S.P. Grujeet Singh. - 7 -

18. Mr. Vivek Singh Thakur, learned Additional Advocate General and Mr. Rajnish Maniktala, learned counsel for the complainant have vehemently argued that the learned trial Court has not correctly appreciated Ex. PW-1/E, dated 3rd March, 2002. We have scrutinized Ex. PW-1/E. There is no mentioning of demand of dowry by the accused, except at the bottom of Ex. PW-1/E. According to this statement, the marriage of Arti Sood was solemnized with Summit Sood on 6th December,

2001. Her in-laws used to harass and maltreat her. She came back from her in-laws to Bhawarna and before that she was staying with her in-laws. She consumed poison on 3rd March, 2002 due to the maltreatment and beatings given to her and not permitting her to stay in her in-laws house. This statement has been recorded by PW-11, HC Narotam Singh.

19. PW-1, Dr. Vinay Mahajan, Medical Officer has categorically stated that the patient was brought to him at 5:45 p.m. on 03.03.2002. The patient was drowsy, pulse was feeble, BP was not recordable, extremities cold and pupils bilaterally non-specific reacting to light. He has also submitted that the statement was not recorded in his presence. The police after writing the same came to him and has shown the statement to him. Thereafter, he got it verified from the deceased and then he put his signature on the dying declaration. He has denied that the police recorded the statement Ex. PW-1/E in his presence and the deceased also put her signature in his presence, i.e., Ex. PW-1/F. He also deposed that the police did not secure the services of JMIC/SDM or any Executive Magistrate for recording the statement of Arti Sood. He also deposed that these officers - 8 - were available in the close vicinity of the hospital. He was never asked by the Investigating Officer that he may take down the statement of Arti Sood. He also stated that state of drowsy means i.e. she was half asleep. He has also admitted that he asked the patient about the history of the case and despite that, the same was neither disclosed by the father nor by Arti Sood.

20. PW-11, HC Narotam Singh has testified that he recorded the statement of Arti Sood, Ex. PW-1/E and he read over the contents of the same to Arti Sood. She accepted the same to be true and put her signature on her statement Ex. PW- 1/E. He also admitted in his cross-examination that the Court of JMIC, Palampur and S.D.M., Palampur or Executive Magistrate are situate at a distance of ‰ Km. He has also admitted that he did not make any efforts to secure the services of JMIC, SDM or any Executive Magistrate for recording the statement of Arti Sood. He also stated that the services of these officers could be secured within half an hour. He also admitted in his cross- examination that he could not give the exact words and language in which other questions were asked. He also admitted that she was giving answers in expression (cid:145)HAN(cid:146) to the questions asked.

21. It is settled law that it is not always necessary to record dying declaration in the presence of Judicial Magistrate or Executive Magistrate. However, in the instant case, the statement has been recorded by PW-11, HC Narotam Singh. The dying declaration Ex. PW-1/E has not been recorded in the presence of PW-1, Dr. Vinay Mahajan. PW-1, Dr. Vinay Mahajan has categorically stated that he was not present when the - 9 - statement of Arti Sood was recorded. The police recorded the statement and thereafter, the same was brought to him.

22. PW-1, Dr. Vinay Mahajan has stated that when the patient was brought to the hospital, she was drowsy, pulse was feeble and BP was not recordable. She was brought to the hospital at 5:45 p.m. on 03.03.2002. PW-11 has admitted that she was answering in expression (cid:145)HAN(cid:146). It is not believable that a patient who was drowsy and whose BP was not recordable, was in a fit condition to give statement. In these circumstances, the dying declaration cannot be relied upon.

23. It has come in the evidence that the relations of Summit Sood with Arti Sood were not cordial. According to the case of the prosecution, Summit Sood has asked an indecent question to deceased at the time of Suhaagraat. Sumit Sood had asked Arti Sood whether she had any physical relations with any person before her marriage. Arti Sood disclosed that she had physical relations before her marriage and abortion has also taken place.

24. PW-7, Om Parkash has admitted that before Arti Sood left for her parents(cid:146) house, there was some dispute which arose between Summit Sood and deceased Arti Sood. She left the place only after dispute arose between them. He did not know whether the conflict arose between husband and wife when they were together for the first time at Suhaagraat and Arti Sood confessed of having sexual relations with somebody else before her marriage.

25. PW-9, Pooja Sood has stated in her cross- examination that her sister, Arti Sood told her that during - 10 - Suhaagraat, her husband asked a very dirty question from her whether she had any sexual relations with anybody before her marriage. She also admitted that on the night of Suhaagraat, there was certainly a talk about the intimate relations which her sister may having with somebody else. She also admitted that after marriage, her sister started living unhappily and she was depressed because of that conversation. She also stated that her sister telephoned her father that she may be taken away as she was disturbed. She also admitted that her sister used to visit her Bua, i.e., PW-3.

26. We do not approve the indecent question put by Summit Sood to his wife. In case he was not sure about the fidelity of his wife, he should have made queries before marriage and certainly not at the time of Suhaagraat.

27. Now, the question which needs consideration, is whether the deceased committed suicide only due to the indecent question put by Summit Sood to Arti Sood? It has come on the record that the relations between the husband and the wife deteriorated after Suhaagraat. It has also come in the statement of sister of the deceased that her sister was depressed after the conversation has taken place between her sister and Summit Sood at the time of consummation of marriage.

28. Arti Sood has tried to explain what has happened on the first night of marriage by writing two letters to Summit Sood. According to her, it was only a joke and there was no truth in the conversation which has taken place between them. She has requested Summit Sood that she may be excused and he should accept her. However, we are of the considered view that after the - 11 - conversation at the time of Suhaagraat, Summit Sood may have decided to withdraw from the company of his wife.

29. It has also come in the record that PW-2 has taken his daughter Arti Sood to PW-17, Dr. Raj Pal Singh. He has diagnosed the ailments, i.e., transitional situational reaction (TSR). According to him, in such type of ailment, suicidal tendency can occur if the patient does not take the medicine as prescribed.

30. It has come in the statement of PW-9, Pooja Sood that her sister Arti Sood was depressed. PW-2 has taken his daughter to PW-17 on 13.12.2001. The prosecution has also tried to prove that the accused had been demanding dowry. PW- 2, Shri Ashwani Kumar, PW-7, Om Parkash, PW-8, Sh. Anil Kumar, PW-9, Smt. Pooja Sood and PW-10, Sh. Chandan Sood have testified that the accused were demanding dowry. PW-2, Sh. Ashwani Kumar has written two letters to father-in-law of Arti Sood vide Ex. PW-2/C, dated 22.02.2002 and Ex. PW-2/D, dated 07.01.2002. We have gone through Ex. PW-2/C, dated

22.02.2002 and Ex. PW-2/D, 07.01.2002. The issue of dowry has not been discussed at all in these two letters. PW-7, Sh. Om Parkash has only stated that deceased and her father have told him that the accused were harassing Arti Sood on the pretext of bringing insufficient dowry. He has not given the date and month of the year when this fact was disclosed to him by Arti Sood and her father. PW-9, Smt. Pooja Sood, sister of the deceased has also not given any specific date when her father and sister have told her that the accused persons were demanding dowry. Similarly, PW-10, Sh. Chandan Sood has also - 12 - not given any specific date when his sister has told her that the accused was harassing her for bringing insufficient dowry. Even, in Ex. PW-1/E, the fact that accused were demanding money has been mentioned in the last sentence.

31. The condition of deceased physical/mental condition, medical evidence, probability of being tutored and voluntariness are some of the factors to see the truthfulness of the dying declaration. The dying declaration is also required to be read in conjunction with corroborative evidence.

32. Thus, the prosecution has failed to prove that the deceased has consumed poison due to maltreatment meted out to her for bringing insufficient dowry or cruelty.

33. The learned trial Court after considering the entire evidence, has rightly acquitted the accused. We, therefore, find no merit in this appeal, which is accordingly dismissed. Bail bonds are discharged. (Deepak Gupta), Judge (Rajiv Sharma) Judge August 22, 2012. (bhupender) - 13 -