IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA Cr. Appeal No. 487 of 2003 Date of decision: 16.12. 2009 State of H.P. …..Appellant Versus Kultar Chand and others ……Respondents Coram: The Hon’ble Mr. Justice Surjit Singh, J. The Hon’ble Mr. Justice Surinder Singh, J. Whether approved for reporting ?1 . For the Appellant: Mr. P.K. Sharma, Addl. Advocate General with Mr. Ramesh Thakur Assistant Advocate General. For the respondents : Mr. K.C. Rana, Sr. Advocate, with Ms. Uma Manta, Advocate. Surinder Singh, J (Oral) The judgment of acquittal, passed by the learned Additional Sessions Judge (II), Dharamshala, under Sections 498-A, 306 read with Section 34 Indian Penal Code is under challenge in this appeal. 2. Precisely, the facts giving rise to the instant appeal can be stated thus. Deceased Neelam Kumari was married to respondent No. 1 Kultar Chand in the month 1 Whether the reporters of Local Papers may be allowed to see the judgment ? yes - 2 - of June, 1994. Kultar Chand was employed at Bombay. The deceased lived in the matrimonial home with respondent No. 2 her mother-in-law and respondent No. 3 the sister-in-law of the deceased. 3. It is alleged that for some time, deceased remained happily in the house of her husband but thereafter, her husband started giving beatings to her and also harassed her because she used to complain against her husband that he was having illicit relations with his sister-in-law respondent No. 3. She also had a grouse that he had been playing to her tunes to which the deceased did not like. Thus, she took it to her heart. When she fell ill, she was taken to the Hospital at Palampur by her parents where she was operated upon but none from the house of her in-laws visited her, except her father-in-law Swarn Singh. When she was discharged from the Hospital and joined the company of her husband, in the matrimonial home. Again she was not treated well on the pretext that she was unable to bear a child. 4. In the month of July, 1998, she informed her father that respondent - 3 - Sarswati, her mother-in-law had given her beatings thus she was brought to her parental house but after sometime she was sent back on the assurance of Swaran Singh, her father-in-law. 5. In the month of October, 1997, she delivered a male child and after one year, i.e., on 14.10.1998, a function was arranged by the respondent and other family members to celebrate the birth day of the child. Relatives and friends were invited including her in-laws. Thereafter, on 21.10.1998 on the day of ‘Bhaiyadooj’ she visited the house of her parents alone. Her husband did not accompany her. She complained to her mother Krishna Devi that her husband remained in-different to her and did not talk to her and the child but she consoled her and sent her back to the house of the respondent on 23.10.1998 and on the same day in the evening, she consumed alluminium phosphide. The respondents and her father-in-law took her to the Hospital for treatment to Primary Health Centre Lambagaon. Her mother Krishna Devi (PW1/A) was informed telephonically by brother-in- - 4 - law of the deceased. On receiving this message, she along with her husband and her mother-in-law visited the Hospital. When she asked from the brother-in-law of the deceased as to what had happened to her, he informed that when she was unconscious, she raised three fingers to convey something but he could not follow as to what she wanted to say. 6. Neelam Kumari died on the same day. The doctor informed the Police. Police visited the Hospital and the statement Ext. PW1-A of Krishna Devi was recorded by PW8 S.I. Pritam Chand under Section 154 of the Code of Criminal Procedure. A ruka was sent for the registration of the case. Inquest papers were also filled-in and dead body was sent for autopsy. 7. PW8 S.I. Pritam Chand visited the spot and vide memo Ext. PW2/B took into possession a bottle containing three tablets of quick phos (an insecticide) which were found kept beside the bed of the deceased. 8. Police also took into possession the vomittance from the side of the bed - 5 - and sealed it in a bottle. Memo Ext. PW2/A was prepared to this effect. 9. Respondents were arrested on 25.10.1998. 10. PW4 Dr. Veema Sharma performed the postmortem of the dead body on 24.10.1998 and gave the tentative opinion that the death was due to shock. However, the final opinion Ext. PW4/C was given after the report of Chemical analysis of the viscera that the cause of death was the consumption of alluminium phosphide. The postmortem report is Ext. PW4/A. 11. Police investigation concluded the complicity of the respondent in the commission of offences aforesaid. Accordingly challan was presented in the court for their trial for the aforesaid offences. 12. Respondents were charge sheeted. They pleaded not guilty and claimed trial. 13. To prove its case, prosecution examined parents of the deceased, namely, Krishna Devi and Abhay Singh, the witnesses of the recovery and Doctor Veena Sharma (PW4) who had conducted the postmortem. - 6 - 14. Respondents were also examined under Section 313 of the Code of Criminal Procedure. They maintained their innocence and denied the allegations. When called upon to enter into the defense, respondents did not lead any evidence in defense. 15. We have heard learned counsel for the parties and have carefully reappraised the evidence on record. 16. There is no dispute about the death of Neelam Kumari by consumption of alluminium phosphide a poisonous substance. Also that deceased was taken to the Hospital i.e. P.H.C. Lambagaon by the respondents for her immediate treatment. Deceased was given fifteen ampules drip injection of atropine and also normal saline but she could not recover and was declared dead around 11.40 p.m. on 23.10.1998, as stated by PW1 Doctor Suresh Kumar Gupta. Regarding the treatment given to the deceased, the said doctor supplied the entire papers along with Medical Legal Report Ext.PW1/B to the Police. Father of the deceased Abhay - 7 - Singh was employed out of State. He used to visit his village during annual leave. 17. Krishna Devi, mother of the deceased (PW1/A) used to live in her village. She stated that after marriage of the deceased with respondent Kultar Chand in the year, 1994, she was kept nicely for about five months. Thereafter he started giving beatings to her and she complained of it whenever she visited parental house. She also stated that the deceased had been complaining about the illicit relations of her husband with his co-accused Suman Kumari his sister-in-law (Bhabi) which caused tension in the family. She also stated that in the year 1996 deceased suffered from stomach-ache therefore, she was admitted in the Hospital at Palampur. On 26.1.1998, she was operated upon and remained admitted in the Hospital for about 8 days. During this time, none visited to her from the side of her in-laws. When she was discharged, she was kept in the house of Smt. Sudesh Katoch, her bua at village Bhabarna for post operational care and follow-up. After about one week, she was again taken to the - 8 - hospital for her check-up and then she was taken to parental house where she stayed for about one month. She further stated that during this period, only her father- in-law Swarn Singh visited them. She was sent back with Swaran Singh to the house of her in-laws. She further stated that when respondent visited his village during leave, he used to beat her on the pretext that since she was operated upon and would not be able to bear a child. However, she undertook that he should wait for two years and if she would not bear a child, she would take the deceased back to their home. She further stated in the year 1997 deceased gave birth to a male child in Thural Hospital but even thereafter the attitude of the respondent did not change. However, the birth-day of the child was celebrated after one year and she along with her husband visited the matrimonial house of the deceased, after this function, they invited the deceased to their house on the occasion of bhaiyadooj but deceased visited alone with her minor child, her husband did not accompany her. She also stated that during that time - 9 - deceased complained to her that her husband neither talked to her nor to the son. She stayed in the house of her parents only for two days and then returned alone on 23.10.1998. On the same day, at about 10 p.m., she received a message from brother-in-law of the deceased informing her that she had consumed poison and was taken to the Hospital. Thereafter, she along with her husband and mother-in-law visited Lambagaon Hospital but by that time, she had expired. On being asked, nobody gave the satisfactory reply about her committing suicide but when she asked the brother-in-law of the deceased, he told her that deceased was unconscious and she raised three fingers but he could not follow it what she wanted to convey. 18. In cross-examination, she admitted that birth-day function of the child was organized by the respondents. She also admitted that Kultar Chand had come on leave only a day before the birth day function and all the relatives including them were invited. She also admitted that when deceased was married to - 10 - Kultar Chand, she was undergoing the course of ITI at Dharamshala to which she continued even after her marriage. He also admitted that she (deceased) had arranged for the accommodation for her stay and also that respondent Kultar Chand used to visit her once in a year during his leave and sometimes once in two years and had been staying with her for about six months. She further stated that she did not make any report to the Police about the alleged beatings given by the respondents nor she convened any Panchayat of the biradari and also did not report the matter to the Police or any one else. She also stated that when deceased was operated in the Hospital, respondent Kultar Chand was at Bombay at the place of his posting. She further stated that none from their side had raised the matter with respect to the illicit relations of the accused with his sister-in-law either before their biradari or before the Panchayat. She also stated that deceased had studied up to 10+2 standard and she used to right letters to her parents complaining about the mis-behaviour of the - 11 - respondent with her. According to her, letters were destroyed and not handed over to the Police. She was also confronted with her statement Ext. PW1/A to the effect that she had assured the respondent that if the deceased would not deliver any child that respondent should wait for two years and if she would not deliver any child, she would take her back, which fact did not find mention therein. 19. PW2 Abhay Singh father of the deceased was employed with Central Government and was residing in Delhi but at the time of the marriage of his daughter was posted in Shrinagar. He also made the similar version that after 6-7 months of the marriage, his daughter complained that respondents were harassing her which fact was disclosed to him by his wife Krishna Devi. He further stated that on 14.10.1998 he had come on leave to participate in the Punjap function (birth- day) of the child in the house of respondents. He along with his wife and other family members visited them. When the function was over, he invited his daughter and son-in-law to his house but - 12 - on 21.10.1998, his daughter came alone, her husband did not accompany her. He further stated that deceased had complained against her husband that he did not talk to her and her son. Thereafter on 23.10.1998, she went back by bus at 11 a.m. During the night. However, they received a message from the brother-in-law of the deceased that Neelam had consumed some poisonous substance and after about ten minutes, another telephonic message was received from Bhuru Singh that she was serious and was taken to the Hospital at Lambagaon. He along with his wife visited the Hospital around 11 p.m. but by that time, she had died. 20. In cross-examination he admitted that the birth-day function of the child was celebrated with joy and gaiety by the respondents. He also stated that during the four years of her marriage, they did not convene any meeting of any biradari or of Panchayat to complain about the ill treatment of their daughter by the respondents. He further stated that deceased used to send letters to them wherein she used to write that she along - 13 - with her child were alright and they should not feel disturbed about them. He also stated that when his daughter was married to respondent Kultar Chand, at that time, he was posted in Shrinagar but he used to visit his village once in a year. He also stated that his wife did not show any letter of deceased to him. He admitted that he never received any letter from his daughter wherein she had made any reference about her harassment by the respondents. 21. PW3 Sudesh Katoch is the bua (sister of father of the deceased). She stated that whenever deceased used to visit the house of her parents, she used to met her and complained about the harassment meted out to her by the respondents. She stated that after her surgical operation, in the Hospital, she stayed in her house and at that time, she told her about the illicit relations of her Jethani respondent No. 3 with her husband and due to that reason, her husband had been giving beatings to her. She admitted in her cross-examination that respondent was employed in Bombay and they - 14 - did not write any letter informing him that Neelam was hospitalized. 22. Although the mother of the deceased stated that the letters written by the deceased were destroyed whereas her father stated that she used to write in the letters that she along with her son was alright. But PW8 S.I. Pritam Chand is stated to have taken into possession some letters of the deceased which were sent on the Bombay address of the respondent Kultar Chand. According to him, Diary and the letters which were recovered but these were not made a part of the record. He denied that purposely he did not do so as it could have demolished the prosecution case. 23. After a careful consideration of the matter, on the strength of the aforesaid evidence, we feel that the prosecution has miserably failed to prove its case beyond a reasonable doubt that the deceased was subjected to any cruelty or that under the above circumstances, she was compelled to commit suicide. Except self serving statements of the parents of the deceased and her Bua Sudesh - 15 - Katoch, which are contradictory and not inspiring confidence, there is nothing on record to corroborate and conclude anything in favour of the prosecution. There is also contradiction about the contents of letters having been sent by the deceased to her parents which did not find the light of the day. Was it not the duty of the prosecution to place all those letters and diary before the court to arrive at the truth? Withholding of such letters and the diary impels us to take an adverse inference against the prosecution that had these articles been produced, it would have been proved the innocence of the respondents. 24. Also, we find that there is no credible evidence to suggest that soon before the death, the deceased had been subjected to cruelty or harassment by the respondents which led to a serious act of committing suicide by her. The distance between the matrimonial home and the parental home does not appear to be much. Further, the matrimonial home of the deceased is located in a thickly populated village. During the function on - 16 - 21.10.1998, thousands of persons had gathered there, including their relatives and co-villagers but there was neither a whisper nor any complaint from the side of any one about the maltreatment or indifferent behaviour of her husband for that matter. Further deceased got married in the year 1994 with the respondent and she committed suicide in the month of October, 1998. According to mother of the deceased, the deceased had been complaining to her after about five months of her marriage about the maltreatment meted out to her by the respondent on account of the fact that her husband was carrying illicit relations with respondent No. 3, his sister-in-law. This fact was stated by Abhay Singh. Pertinently, even her mother did not inform her husband telephonically or by writing the letter to him more specifically when he used to visit his village only once in year. 25. We also find from the evidence on record that respondent never objected to deceased visiting her parents whenever she desired to do so. She was earlier operated upon in the Hospital for her stomach - 17 - thereafter she delivered a baby boy and the birth day of the child was celebrated with great pomp and show by the respondent would show that respondents were happy on the delivery of male child by the deceased. Therefore, allegations made by her mother Krishna Devi that deceased used to complain that her husband had not been talking to her and the son appears to be doubtful more specifically when he was working in Bombay and used to visit his house for few days in a year appears to us doubtful. 26. Also we find that family of the respondents is a joint family and the husband of the deceased was employed at Bombay, away from his village, which might have caused the depression to the deceased as he had to go back to attend his duty, thus she might have got depressed and in depression committed suicide. The alleged story of illicit relations of respondent No. 1 with sister-in-law, which could compel the deceased to commit suicide, is lacking probity. 27. Thus, in our considered opinion, impugned judgment of acquittal is in - 18 - consonance with the proved facts on record. Respondent cannot be convicted on the ground that in all probabilities they might have committed the offences charged. View taken by the learned trial Court is reasonable and plausible thus; we do not find any perversity in the impugned judgment. Accordingly the appeal is without any merit and the same is therefore, dismissed. (Surjit Singh),J. December 16, 2009 (Surinder Singh),J (cm)