Judgment:
Crl.
Appeal No.D-425-DB of 2009 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Crl.
Appeal No.D-425-DB of 2009 Date of Decision : 13.2.2014 Dharampal and others .......Appellants Versus State of Haryana ...Respondent CORAM: HON'BLE Mr.JUSTICE SATISH KUMAR MITTAL HON'BLE Mr.JUSTICE KULDIP SINGH Present:- Mr.Vinod Ghai, Senior Advocate, with, Mr.Simrandeep Singh and Mr.Paras Talwar, Advocates, for the appellants, Mr.Dhruv Dayal, Deputy Advocate General, for the respondent-State.
KULDIP SINGH, J.
This appeal is directed against the judgment and order dated 25.2.2009/28.2.2009, passed by learned Additional Sessions Judge, Hisar, whereby the present accused/appellants Dharampal, Ram Sarup, Shanti Devi (since deceased).Sunita @ Vedo and Geeta have been convicted under Section 302/34 IPC and sentenced to undergo rigorous imprisonment for life each and to pay a fine of Rs.5,000/- each, in default thereof, to further undergo rigorous imprisonment for a period of six months.
They have also been convicted under Section 328/34 IPC and sentenced to under rigorous imprisonment for five years each and to pay a fine of Rs.2,000/- each, in default thereof, to further undergo rigorous imprisonment for two months.
They have also been convicted under Section 498-A IPC and sentenced to undergo rigorous imprisonment for Sharma Sanjiv Kumar 2014.03.06 14:22 I attest to the accuracy and integrity of this document Chandigarh Crl.
Appeal No.D-425-DB of 2009 -2- one year each and to pay a fine of Rs.1,000/- each, in default thereof, to further undergo rigorous imprisonment for one month.
All the sentences have been ordered to run concurrently.
The present case was registered on the basis of the dying declaration (Ex.P35) made by Mukesh (since deceased) wife of accused Dharampal before Shri A.D.Dewan, learned Judicial Magistrate 1st Class, Hansi.
In her statement, Mukesh (deceased) stated that she has got two Nanads (sisters-in-law).mother-in-law, father-in-law and her husband.
On 31.7.2006, her husband Dharampal forcibly poured a pouch in her mouth and in the mouth of her son Sahil stating it to be medicine.
The deceased further stated that her hands were caught hold by her mother-in- law and father-in-law and her feet were caught hold by her sisters-in-law.
After giving her the pouch, her husband went to board the bus for going to Gurgaon.
In the meanwhile, she started vomiting.
Her mother-in-law and father-in-law called the neighbouRs.When all the neighbours went outside to make arrangement for transport, then her husband met them.
Then, her husband came alongwith them in the house.
Then, all of them took her and her son Sahil to the hospital for treatment.
She further alleged that her mother-in-law, father-in-law, sisters-in-law and husband were not treating her well.
Even they were not on speaking terms with her.
Her feet are defective and that is why they all wanted to kill her and desire to perform second marriage of her husband (Dharampal).She has only one son.
It comes out that the statement was recorded in the presence of the doctor, who certified that the patient remained fit throughout while making the statement.
Sharma Sanjiv Kumar 2014.03.06 14:22 I attest to the accuracy and integrity of this document Chandigarh Crl.
Appeal No.D-425-DB of 2009 -3- ASI Ramesh Chander then recorded the police proceedings at 2:30 PM, in which he recorded that he had received two medical ruqas, one regarding the admission of Mukesh, wife of Dharampal as a poisoning case and second regarding death of Sahil son of Dharampal, in poisoning case.
The ruqas were received in the police station from Kamla Devi Jaswant Singh Saini Hospital, Hansi (in short 'Saini Hospital').On this ASI Ramesh Chander alongwith other police officials reached Saini Hospital and obtained the opinion of doctor regarding fitness of Mukesh wife of Dharampal, resident of Piran (Ahiranwali Dhani) to make statement.
The doctor opined that Mukesh is fit to make statement.
Thereupon, ASI Ramesh Chander moved an application before Shri A.D.Dewan, learned Judicial Magistrate 1st Class, Hansi, to record the statement of patient by visiting the hospital.
The learned Judicial Magistrate 1st Class, Hansi, then visited Saini Hospital and recorded the statement of Mukesh.
After obtaining the certified copy of the statement of Mukesh from the Court, ASI Ramesh Chander came to the conclusion that prima-facie, offence under Sections 328, 307, 302/34 IPC is made out.
Therefore, the statement was sent to Police Station Sadar, Hansi, where FIR No.214 dated 31.7.2006 under Section 328, 307, 302/34 IPC was registered.
The copy of the FIR is Ex.P11/A.
Police prepared the inquest report of Sahil.
The post mortem of the dead body was also got conducted.
Rough site Plan Ex.P41 of place of occurrence was prepared.
Mukesh was then shifted to Anant Ram Janta Hospital PVT.Ltd., Barwala, where she breathed her last on 1.8.2006.
Inquest report Ex.P27 was prepared and the post mortem of the dead body of Mukesh Devi was also got conducted.
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Appeal No.D-425-DB of 2009 -4- The accused were arrested.
After the completion of the investigation, the challan was presented in the Court.
Accused were chargesheeted under Sections 498-A, 328 and 302 read with Section 34 IPC.
Accused pleaded not guilty to the charges framed against them and claimed trial.
To prove its case, prosecution examined Dr.
Ranjeet Saini (PW1).Dr.
Jagdish Sethi (PW2).EHC Sat Narain (PW3).ASI Sadhu Ram (PW4).Subhash Chander, Draftsman (PW5).SI Sadhu Ram (PW6).Constable Chander Bhan (PW7).Dr.
Gulshan Mehta (PW8).HC Malkiyat Singh (PW9).EHC Suresh Kumar (PW10).Dr.
D.S.Lamba (PW11).Constable Subhash Chand (PW12).A.D.Dewan, JMIC (PW13).SI Prahlad Rai (PW14).Hari Ram (PW15).Sandeep (PW16).SI Ramesh Chander (PW17) and closed the evidence.
When examined under Section 313 Cr.P.C., accused Dharampal pleaded that he never harassed his wife Mukesh for polio disability.
He was living with his wife and son in a separate house away from his parents and sisteRs.A son, named, Rohit was born to the couple, but later on died in PGI, Chandigarh.
After his marriage, he passed graduation and had recently joined service at Gurgaon.
His wife used to remain depressed after the death of his son and intended to shift with him at Gurgaon, but he expressed his inability for want of a proper house and had promised his wife that he would take her to Gurgaon.
On the day of occurrence, he left the house in morning for going to Gurgaon.
When he reached G.T.road to board the bus, the neighbours called him back.
He found that his son Sahil and wife Mukesh had taken poison.
He and his Sharma Sanjiv Kumar 2014.03.06 14:22 I attest to the accuracy and integrity of this document Chandigarh Crl.
Appeal No.D-425-DB of 2009 -5- family members removed Sahil and Mukesh to hospital in a school bus.
He also sent information to Hari Ram (father of the deceased) through his uncle Musadi.
Hari Ram came to the hospital at Hansi and turned him and his family members out of the hospital and tutored Mukesh to make a false complaint against him and his family membeRs.The remaining accused took the plea that they were living separately from Mukesh and Dharampal and have been falsely involved.
In defence, accused examined Musadi Ram (DW1) and closed the defence evidence.
On the conclusion of the trial, the learned Additional Sessions Judge after going through the evidence and hearing both the parties convicted and sentenced the accused as aforesaid.
We have heard learned senior counsel for the accused/appellants, learned Deputy Advocate General for the State and have also carefully gone through the file.
FiRs.of all, it is to be noted that Mukesh (deceased) in her dying declaration had given her address as Dhani Piranwali.
When the statements of the accused were recorded on 14.11.2008, accused Dharampal disclosed his age as 28 yeaRs.which means he was 26 years of age at the time of occurrence.
Accused Shanti Devi (mother-in-law) of the deceased mentioned her age 61 yeaRs.which means that she was 59 years of age at the time of occurrence.
Accused Ram Sarup disclosed his age as 67 yeaRs.which means that he was 65 years of age at the time of occurrence.
Accused Sunita Rani alias Vedo disclosed her age to be 20 yeaRs.which means that she was 18 years of age at the time of occurrence.
Sharma Sanjiv Kumar 2014.03.06 14:22 I attest to the accuracy and integrity of this document Chandigarh Crl.
Appeal No.D-425-DB of 2009 -6- Accused Geeta Rani disclosed her age to be 28 yeaRs.which means that she was 26 years of age at the time of occurrence.
First, the medical evidence needs to be examined.
Dr.
Gulshan Mehta (PW8).who had conducted the post mortem of Sahil, has opined that cause of death was due to poisoning of aluminum phosphide.
During cross examination, he clarified that there was no external mark of injury on the dead body of Sahil.
There was no sign of forcible poisoning internally or externally on the mouth of Sahil.
Dr.
D.S.Lamba (PW11).who had conducted the post mortem of Mukesh (deceased) on 1.8.2006, also gave the similar report.
The intimation of Saini Hospital to the police Ex.P1 shows that Sahil expired on 31.7.2006 at 10:10 AM.
The time of admission of Sahil and Mukesh in Saini Hospital is given to be 9:00 AM on 31.7.2006.
As per the bed head ticket of Mukesh (Ex.P7) prepared at Anant Ram Janta Hospital PVT.Ltd., Barwala, she expired on 1.8.2006 at 3:40 AM.
Dr.
Ranjeet Saini (PW1).who had given initial treatment to both the deceased, stated that Mukesh and Sahil were brought to Saini Hospital on 31.7.2006 at 9:00 AM.
Sahil expired on the same day at 10:10 AM and Mukesh was referred to PGI, Rohtak on 31.7.2006.
He stated that both the patients were brought by Musadi Ram, Dariya Singh and Ram Sarup resident of Dhani Piran.
Mukesh was talking a bit when she was brought for treatment.
She did not give any history of ingression of some poison.
There was no injury on any part of her body.
There was no tearing of the clothes.
There was no symptoms of forcible poisoning in mouth, lips or neck.
Mukesh was discharged at her request on 31.7.2006 Sharma Sanjiv Kumar 2014.03.06 14:22 I attest to the accuracy and integrity of this document Chandigarh Crl.
Appeal No.D-425-DB of 2009 -7- at 1:30 pm to be taken to PGI, Rohtak.
The initial treatment was got done by the persons who had brought the patient to the hospital.
He further stated that paternal and maternal side of Mukesh were taking care of the patient before the arrival of the Magistrate.
The attendants of Mukesh were sent out by the Magistrate from the room before recording her statement.
Dr.
Jagdish Sethi of Anant Janta Hospital PVT.Ltd., Barwala, confirmed that Mukesh was brought to their hospital on 31.7.2006 at 3:00 PM and she expired on 1.8.2006 at 3:40 AM.
There was no mark of injury on the person of Mukesh.
It is also necessary to examine the statements of material witnesses, namely, Shri.
A.D.Dewan, Judicial Magistrate 1st Class, Hansi (PW13).Hari Ram, father of deceased (PW15).Sandeep, brother of deceased Mukesh (PW16) and ASI Ramesh Chander, Investigating Officer (PW17).FiRs.of all, taking up the statement of Hari Ram, father of the deceased (PW15).it comes out that he has stated that his daughter Mukesh was married with the accused Dharampal about 9 years ago.
One leg of Mukesh was affected with polio.
After the marriage, the in-laws of Mukesh started beating her.
Those who gave beating included father-in- law Ram Sarup, husband Dharampal, mother-in-law Shanti Devi and sisters-in-law Geeta and Sunita.
All the said accused used to remark that in case Mukesh dies then they will solemnize the marriage of Dharampal with a girl having two legs.
He further claimed that he had convened panchayat on three occasions.
On 31.7.2006 at about 9:00 AM, his daughter's sister-in-law Sunita informed him on telephone that Mukesh Sharma Sanjiv Kumar 2014.03.06 14:22 I attest to the accuracy and integrity of this document Chandigarh Crl.
Appeal No.D-425-DB of 2009 -8- and her son were seriously ill and they were admitted in Saini Hospital, Hansi.
Then, he alongwith his nephew Rajesh reached Saini Hospital on a motorcycle.
By that time, his grandson Sahil had died, while the condition of Mukesh was serious.
He further stated that his daughter Mukesh disclosed him that she had given the details of her miseries to him on several occasions and that her in-laws, except her husband caught hold of her while Dharampal put a pouch of poison in her mouth forcibly.
He further stated that police as well as one Magistrate arrived at the hospital.
The cross-examination of Hari Ram revealed that in his statement Ex.D1 made before the police, he had not stated that her daughter had disclosed to him that she had given the details of her miseries to the witness on several occasions and that Dharampal had put poison in her mouth from a pouch and other accused caught hold of her.
However, it was mentioned in the statement Ex.D1 that he had satisfied himself from Mukesh regarding this incident and that Dharampal, his father, mother and sisters Sunita and Geeta had administered pouch of poison to Mukesh and her son.
He further stated that Sunita (accused) might be 9/10 years of age at the time of marriage of Dharampal.
She was school going girl at that time.
Accused Geeta was 4/5 years older to Sunita.
She was aged about 15/16 years at the time of marriage of Mukesh and she was also a school going girl.
Then, he admitted that after the marriage, Dharampal had taken up matriculation examination and had joined service at Sohna about two months prior to the death of Mukesh.
He had probably done couRs.of J.E.Dharampal had not taken Mukesh and Sahil to the place of his posting.
He admitted that family of Dharampal had two houses; one in the fields and Sharma Sanjiv Kumar 2014.03.06 14:22 I attest to the accuracy and integrity of this document Chandigarh Crl.
Appeal No.D-425-DB of 2009 -9- other in Dhani Piran.
Musadi and Ram Kishan are two brothers of Ram Sarup (accused).Said Ram Kishan and Musadi reside nearby at the distance of 3/5 acres.
He stated that he had only seen house of Dharampal located in the fields.
Then regarding his arrival, he has clarified that his village Jamawadi is situated 5/6 kilometers from village Dhani Piran if shorter route is adopted.
The distance via metal road is 10 kilometeRs.His brother-in-law Ramesh is residing at village Mamanpura at the distance of 15 kilometers from village Jamawadi.
He further admitted that Sanjay son of Parmanand (PW) is the son of his sister's husband.
Ram Bhagat is the elder brother of Sanjay.
Ram Bhagat is stated to be an advocate, practising at Bahadurgarh, District Jhajjar.
Jagdish, Advocate, is practising at Hansi, but he is not related to him.
Then, Hari Ram admitted that a son Rohit was born to the couple after three years of marriage, who expired about 3/4 years ago at PGI Chandigarh.
Dead body of Rohit was received by Ram Bhagat, Advocate.
Regarding the convening of panchayat, he stated that last panchayat was convened about 4 years prior to the death of Mukesh.
He stated that after receiving the intimation, he reached Saini Hospital within 15/20 minutes.
At that time, Sahil had expired.
He had talked to his daughter in Saini Hospital.
At that time, no glucose or blood was being transfused to her.
No treatment was being provided to her, though the treatment of Sahil was in progress.
He further stated that his daughter disclosed him about the incident in the presence of his nephew Rajesh.
His daughter disclosed him about the incident in 15/20 minutes of his reaching the hospital.
5/7 minutes had elapsed when he was talking to his daughter and that in the meanwhile, the police and Magistrate reached Sharma Sanjiv Kumar 2014.03.06 14:22 I attest to the accuracy and integrity of this document Chandigarh Crl.
Appeal No.D-425-DB of 2009 -10- there.
He stated that his son Sandeep met him at Saini Hospital at 10:00 AM.
He denied the defence story put up to him.
Next important witness is Sandeep son of Hari Ram (PW16) who is the brother of deceased Mukesh.
Sandeep had put forward the story that on 30.7.2006, he had gone to Dhani Piran to meet his sister.
On the next morning, he had gone out for morning walk and when at about 7:30 am, he was at some distance from the house of Dharampal, he heard the alarm 'Bachao-Bachao'.
When he went inside the room, he saw that parents-in-law of Mukesh, namely, Ram Sarup, Shanti, sisters-in-law Geeta and Sunita had caught hold of Mukesh, while Dharampal put a pouch of poison in the mouth of Mukesh.
His nephew was lying near the bed.
He became frightened and returned to his village to disclose this fact to his parents.
Shri A.D.Dewan, learned Judicial Magistrate 1st Class, Hansi (PW13).disclosed that on 31.7.2006, ASI Ramesh Chander had moved an application before him for recording the statement of Mukesh at Saini Hospital, Hansi.
He accordingly recorded the statement Ex.P32.
He had also obtained the opinion of the doctor regarding fitness of the patient to make statement Ex.P33.
Before recording the statement, he asked everybody present near Mukesh to go out of the room, except doctor on duty.
The patient remained fit while making the statement.
During cross- examination, he stated that ASI Ramesh Chander had approached him at about 12:45 PM on 31.7.2006.
He reached hospital within 10/15 minutes.
He does not remember about the number of attendants present at the time of his visit.
He also does not remember whether Mukesh was talking with Sharma Sanjiv Kumar 2014.03.06 14:22 I attest to the accuracy and integrity of this document Chandigarh Crl.
Appeal No.D-425-DB of 2009 -11- somebody or not when he reached the hospital.
He took about 10 minutes in recording the statement of Mukesh.
It means that as per the statement of Shri A.D.Dewan, learned Judicial Magistrate 1st Class, Hansi, the statement of deceased was recorded on 31.7.2006 around 1:00 PM.
The time of recording of statement is material, while discussing the value of dying declaration.
ASI Ramesh Chander, Investigating Officer (PW17).proved the formalities of investigation.
During cross-examination, he disclosed that he had received ruqas at 11:30 am on 31.7.2006.
He reached Saini Hospital at 11:45 AM.
At that time, Sahil was already dead and Mukesh was under treatment.
At the time of his visit, 10/12 persons were standing near the bed of Mukesh and 10/12 persons were standing outside the hospital.
Hari Ram, Rajesh and Ramesh were present near Mukesh.
He had asked Mukesh if she was all right and then she just replied by telling her name.
Hari Ram etc.were talking with her at that time.
He had not recorded the statement of Hari Ram at that time nor Hari Ram disclosed to him any fact.
Regarding the time of arrival of the Magistrate, he stated that he reached Court room of the Magistrate at about 12:30 PM.
Then, they left for hospital in 10 minutes and reached the hospital at 12:45 PM.
Hari Ram etc.were found near Mukesh at that time and they were talking to her.
They were sent out by the Magistrate.
He knows Ram Bhagat, Advocate, relation of the deceased, but he did not see Ram Bhagat at that time.
He further deposed that when the spot was inspected, no broken pieces of bangles were found.
Learned senior counsel for the appellants has vehemently Sharma Sanjiv Kumar 2014.03.06 14:22 I attest to the accuracy and integrity of this document Chandigarh Crl.
Appeal No.D-425-DB of 2009 -12- argued that the dying declaration of Mukesh in this case cannot be relied upon to convict the accused.
The dying declaration was made out of vengeance as Sahil son of Mukesh was already dead at 10:10 AM.
Her dying declaration was recorded at 1:00 PM by the Magistrate.
Before that, Hari Ram (father of the deceased) had arrived in the hospital and he had talked with her daughter Mukesh.
Other relations of Mukesh from parents side had also arrived there.
The village of Hari Ram is at a short distance of 5/6 kilometeRs.As everybody knew that minor son Sahil of Mukesh had died, therefore, atmosphere was highly surcharged.
It has been further argued that Mukesh was tutored by her father and other relations to make statement against accused in which even the school going sisters-in-law were involved in the occurrence.
Learned senior counsel has further pointed out to the statement of the doctor that at the time of admission, Mukesh had not disclosed about the forcible administering of poison by her husband and in-laws family, rather she had talked about 'ingression of poison'.
She was brought to hospital at 9:00 AM.
It was only after 10:10 AM that when Sahil died and the parents of Mukesh arrived that the atmosphere became surcharged and Mukesh was tutored to involve her husband and entire family of in-laws in the crime.
The Investigating Officer has clearly stated that he saw Hari Ram and other relations talking to Mukesh when he arrived in the hospital initially at 11:45 AM and also later, when he arrived alongwith Magistrate.
Even Hari Ram had admitted to have talked with her daughter Mukesh before the arrival of the police about the incident.
It has been further argued that even the medical evidence shows that there was no sign of use of force so as to suggest that Sharma Sanjiv Kumar 2014.03.06 14:22 I attest to the accuracy and integrity of this document Chandigarh Crl.
Appeal No.D-425-DB of 2009 -13- aluminum phosphide was forcibly put in the mouth of Mukesh and Sahil.
It has been further argued that Dharampal had great love and affection for his son Sahil as he had already lost his son Rohit.
Therefore, father will be the last person to put aluminum phosphide poison in the mouth of his son aged about 3 yeaRs.Therefore, it has been vehemently argued that the dying declaration of Mukesh is not dependable and is a result of tutoring by Hari Ram and other relations before the arrival of the police and Magistrate.
The dying declaration has been made out of vengeance and was not voluntary act of Mukesh.
We have scanned the entire evidence.
We are of the view that indeed it is admitted by the witnesses that they had a conversation with Mukesh (deceased) before the arrival of the police and Magistrate.
When deceased made the statement before the Magistrate at around 1:00 PM, her son Sahil was already dead at 10:10AM.
Her parents had arrived.
They had a talk with Mukesh regarding occurrence.
Mukesh (deceased) was certainly aggrieved and under shock due to death of her minor son.
The fact that the parents and other relations of Mukesh had talked with her regarding occurrence before recording her statement goes to show that Mukesh was tutored to make the statement against the accused.
She was also under shock and most probably wanted to take revenge upon the accused for the death of her son Sahil.
In this way, the dying declaration was made by her under highly surcharged atmosphere while she was tutored and under shock after coming to know about the death of her minor son Sahil.
Her statement that Dharampal had forcibly put a pouch of poison in her mouth and in the mouth of her son Sahil is also contradicted Sharma Sanjiv Kumar 2014.03.06 14:22 I attest to the accuracy and integrity of this document Chandigarh Crl.
Appeal No.D-425-DB of 2009 -14- by medical evidence, which ruled out the possibility of use of force.
No injuries were found on the persons of Mukesh and Sahil nor their clothes were found torn.
Then, there is other evidence to show that Dharampal was not present in the house when the poison was consumed by Mukesh and Sahil.
Mukesh had stated in her dying declaration that after administering poison, her husband went away to board bus for Gurgaon.
Then her husband had come back and removed herself and her son to hospital.It goes to show that Dharampal had left the house to go to his job.
He was yet to board the bus when he received the intimation that his wife Mukesh and son Sahil have consumed poison.
Therefore, he rushed back and removed them to the hospital.
Had Dharampal administered aluminum phosphide to his wife and son, he would not have gone to catch the bus at G.T.Road to go to Gurgaon, and then on receiving the intimation immediately rushed back and made attempt to save his wife and minor son.
In these circumstances, we are of the view that the dying declaration of Mukesh (Ex.P35) cannot be relied upon to hold all the accused guilty of commission of murder and forcibly administering poisonous substance.
So far as story put-forward by Sandeep (brother of the deceased) is concerned, the same is not reliable.
It cannot be believed that Sandeep was present in the house on the previous night and that he saw the occurrence with his eyes and then quietly went away to inform his parents about the same.
Mukesh does not talk about her brother being present in the house at the time of commission of crime.
Therefore, the statement of Sandeep was rightly dis-believed by the trial Court.
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Appeal No.D-425-DB of 2009 -15- Now, further question would arise as to how Mukesh and Sahil died ?.
The statement of Hari Ram shows that marriage of Mukesh (deceased) with Dharampal was solemnized about 9 years ago.
One leg of Mukesh was affected with polio.
It also comes out from the cross- examination that Mukesh was blessed with two sons.
One of their son Rohit had died in PGI about 3/4 years ago.
Parties were then blessed with son Sahil, who was aged about 3 yeaRs.Therefore, it shows that Dharampal and his wife Mukesh were having cordial relations.
There was no question of Mukesh (deceased) being harassed on account of her one leg being affected with polio.
Regarding the panchayat, Hari Ram has clearly stated that the last panchayat had taken place about 4 years prior to the death of Mukesh, which means that at the time of death of Mukesh, there was no dispute between the parties.
It also comes out from the statement of Hari Ram that Sunita was 9/10 years of age at the time of marriage of his brother Dharampal and was a school going girl and Geeta was 4/5 years older than Sunita and she was also a school going girl.
It follows that the allegation of death being connected with the demand of dowry is ruled out.
Consequently, offence under Section 498-A IPC is not attracted in the present case.
As discussed above, the story of Mukesh given in her dying declaration that accused Dharampal put a pouch of aluminum phosphide in her mouth and also in the mouth of his son Sahil forcibly while she was caught hold by her father-in-law, mother-in-law and two sisters-in-law has been dis-believed.
It is also established that Dharampal was working at Sharma Sanjiv Kumar 2014.03.06 14:22 I attest to the accuracy and integrity of this document Chandigarh Crl.
Appeal No.D-425-DB of 2009 -16- Gurgaon and he daily used to go to his job.
The dying declaration of Mukesh also shows that according to her, her husband had left the house to board the bus and that thereafter her husband came back to the house alongwith neighbouRs.The stand of accused Dharampal is that he had gone to board the bus at G.T.Road, but he was informed about consuming of poison by Mukesh and Sahil, therefore, he came back and removed Mukesh and Sahil to the hospital.
One thing is very clear that Sahil was the only son of Dharampal (accused).He was of a tender age.
Dharampal had already lost his son Rohit.
Therefore, he will be last person to forcibly put deadly aluminum phosphide in the mouth of his son.
Absence of any use of force on Mukesh suggests that before leaving for Gurgaon Dharampal said something very pinching to his wife Mukesh, who took it to heart.
Therefore, when Dharampal left for his job to board the bus, she consumed aluminum phosphide and also administered the same to her son Sahil.
Section 306 IPC provides as under:- “306.
Abetment of suicide - If any person commits suicide, whoever abets the commission of such suicide, shall be punished with imprisonment of either description for a term which may extend to ten yeaRs.and shall also be liable to fine.”
.
Abetment is further defined in Section 107 IPC, which reads as under :- “107.
Abetment of a thing - A person abets the doing of a thing, who - FiRs.- Instigates any person to do that thing; or Secondly - Engages with one or more other person or persons in any conspiracy for the doing of that thing, if an act or illegal omission takes place in pursuance of that conspiracy, and in order to the doing of that thing; or Thirdly - Intentionally aids, by any act or illegal omission, the doing of that thing.”
.
Sharma Sanjiv Kumar 2014.03.06 14:22 I attest to the accuracy and integrity of this document Chandigarh Crl.
Appeal No.D-425-DB of 2009 -17- Section 106 of the Indian Evidence Act, 1872 provides as under :- “106.
Burden of proving fact especially within knowledge.- When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him.”
.
In this case, Dharampal, his wife alongwith their minor son Sahil aged about 3 years were residing in the room.
What happened immediately before the departure of Dharampal to catch the bus for Gurgaon was within his (Dharampal) special knowledge.
The fact that immediately after departure of Dharampal, his wife Mukesh took the extreme step of consuming aluminum phosphide and also administered the same to her unsuspecting son Sahil, who was of tender age and was not in a position to resist her mother, goes to show that Dharampal either said something to his wife Mukesh or he did something which abetted his wife Mukesh to commit suicide and also administer poison to her son Sahil.
Dharampal has not explained such circumstances in his knowledge and his explanation that he had left for G.T.Road to catch the bus for Gurgaon without explaining the circumstances immediately before departure goes to show that he has concealed the occurrence that had taken place prior to his departure.
Therefore, we are of the view that in this case, offence under Section 306 IPC in place of Sections 302/34, 328/34 and 498-A IPC is made out against accused Dharampal only for having abetted the commission of suicide by his wife Mukesh, whereas no offence is made out against accused Ram Sarup, Shanti Devi (since deceased).Sunita alias Vedo and Geeta under Sections 302/34, 328/34 and 498-A IPC.
Since Shanti Devi had died, the appeal against her will abate.
The appeal filed by Sharma Sanjiv Kumar 2014.03.06 14:22 I attest to the accuracy and integrity of this document Chandigarh Crl.
Appeal No.D-425-DB of 2009 -18- accused Ram Sarup, Sunita @ Vedo and Geeta is allowed and they are acquitted of the offences under Sections 302/34, 328/34 and 498-A IPC.
The fine paid by them be refunded to them.
Accused Dharampal, who is in custody, is also acquitted of offences under Sections 302/34, 328/34 and 498-A IPC and instead, he is convicted under Section 306 IPC and sentenced to undergo rigorous imprisonment for 8 years and a fine of Rs.10,000/-, in default thereof, further rigorous imprisonment for 2 yeaRs.Part of fine already paid by Dharampal shall be adjusted against the fine imposed above.
Thus, appeal of Dharampal is partly allowed.
(SATISH KUMAR MITTAL) (KULDIP SINGH) JUDGE JUDGE132.2014 sjks Whether referred to the Reporter or not ?.
: Yes / No.Sharma Sanjiv Kumar 2014.03.06 14:22 I attest to the accuracy and integrity of this document Chandigarh