1 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 335 of 1997. Date of Decision: 3-6-2008. ____________________________________________________________ Ram Lal and another. Appellants. Versus State of H.P. Respondent. For the appellants : Mr. M.S. Chandel, Advocate with Mr. N.S. Chandel, Advocate. . For the respondent : Sh. P.K. Sharma, Addl. Advocate General. Coram Hon’ble Mr. Justice Surjit Singh, J. Hon’ble Mr. Justice Surinder Singh, J. Whether approved for reporting1? _________________________________________________________ Surjit Singh, J. (oral). Appellants Ram Lal, the father-in-law and Baldev Raj, the husband of deceased Kaushalaya Devi, have preferred this appeal against the judgment of the Sessions Court, whereby they have been convicted of offences, punishable under Section 304-B and 498-A, I.P.C. and sentenced to under-go rigorous imprisonment for ten years and to pay a fine of rupees 2000/- for the offence under Section 304-B and to undergo rigorous imprisonment for two years and to pay a fine of rupees 2000/- in respect of offence, under Section 498-A, I.P.C, for torturing/harassing and causing the death of Smt. Kaushalaya Devi on 23-5-1992. Whether reporters of the Local papers are allowed to see the judgment? 2 Kaushalaya Devi deceased was married to appellant Baldev Raj on 10-12-1991 or say only about six months prior to the occurrence. At the time of the departure of Doli, appellant Ram Lal took the father of the prosecutrix, namely, Krishnu Ram (PW2), aside and whispered into his ears demand for a refrigerator, a brass Baltohi and cash of rupees 10,000/-. PW2 Krishnu Ram told the appellant Ram Lal that within a month, he would be meeting the demand but her daughter should not be harassed, on account of complained insufficiency of dowry. About fifteen days after the marriage, deceased visited her parents’ place. Her father PW2 Krishnu Ram was not at home. The deceased complained to her mother Smt. Kalawati (PW3) that she was being harassed by her father-in-law and brother- in-law Subhash, on account of insufficiency of dowry and also because of her parents having not met the demand, which was made at the time of the marriage. The deceased again visited her parents’ during Lohri festival. This time, Krishnu Ram (PW2) was also at home. She complained to both her mother and father that she was being harassed because of their having not met the demand made at the time of marriage. On 19.4.1992, the deceased again visited her parents in connection with a ‘Yagya’ function performed at their place and this time also, she repeated her complaint. On 19.5.1992, the deceased went to Bilaspur where her father was posted in some Government Department and told him that her in-laws had been demanding T.V. booster, because at the time of the marriage, though T.V. set had been provided, its booster was not there. Her father PW2 Krishnu Ram told her that he would be buying a booster for her on the first day of the next month, when he got his salary. PW2 Krishnu Ram then requested his father Gulaba Ram (PW4) to visit the in-laws of the 3 deceased and assure them that all their demands would be met and request them that the deceased should not be harassed. Gulaba Ram went to the place of the appellants on 21.5.21992. He made request to the appellants, particularly Ram Lal, the father-in-law of the deceased, not to harass the deceased. He stayed there for the night. Next day, he returned to his place. On that very day, the prosecutrix died of poisoning. Krishnu Ram, the father of the deceased, was telephonically informed by the appellant Ram Lal to see him at his office in S.P.’s office at Bilaspur where Ram Lal was employed those days as a constable. When Krishnu Ram went to the office of the Superintendent of Police, where some constable told him to go to the hospital. On reaching the Hospital, appellant Ram Lal told him that the deceased had consumed poison and died. Krishnu Ram then went to the place of the in-laws of the deceased. From there, he deputed one Raj Kumar (PW5) to inform the police. Police reached the spot on the next following day at 7.00 a.m. Dharam Singh (PW13), Sub Inspector, Police Lines, Bilaspur headed the police party that reached the place of the appellants. There he recorded the statement Exhibit PB, under Section 154 of the Code of Criminal Procedure of PW2 Krishnu Ram which was sent to Police Station for formal registration of the case. Case was registered vide F.I.R. Exhibit PB/1. Inquest was conducted. Dead body was sent for post mortem examination. No external injuries were noticed on the dead body. Viscera was sent to the Chemical Examiner who gave the opinion vide report Exhibit PF, that there was aluminium phosphide poison in the viscera. On the basis of this report Exhibit PF, the Doctor who conducted the post mortem, namely, PW8 Dr. B.D. Sharma gave the 4 final opinion Exhibit-PG that cause of death was poisoning by aluminium phosphide. On 2-6-1992, the Investigating Officer of the case was changed. Anant Ram (PW14) who was S.H.O., Police Station, Sadar at that time took over the investigation from PW13 Dharam Singh Sub Inspector. On 3-6-1992, an application Exhibit-PC was made to the Judicial Magistrate of the area by Krishnu Ram that the Police had not recorded his statement under Section 154 Cr. P. C. correctly nor was it investigating the case in the right direction and that he wanted to make statement, under Section 164 Cr.P.C. On the basis of that application, statement Exhibit-PD of Krishnu Ram was recorded. It was in this statement that Krishnu Ram made a mention of the alleged demand by Ram Lal of a refrigerator, cash of rupees 10,000/- and a brass baltohi (pitcher). He also got recorded in the statement that Ram Lal used to return home late in the night in a drunken state and hurl abuses at the deceased and seek explanation why had she taken meals before his return and also demanded that before going to sleep, deceased messaged and pressed his legs and feet and continued doing so till he went to sleep. We may state that in Exhibit-PB the statement which was made on 23-5-1992, there was no mention that any demand of the aforesaid items was made soon after the marriage and before the Doli left the place of Krishnu Ram (PW2) or that the deceased was subjected to harassment on account of dowry demand. The only thing that was mentioned in the said statement was that on 19th May,1992, deceased visited PW2 Krishnu Ram at Bilaspur and asked for a T.V. booster. And even with respect to this T.V. booster, there was 5 no allegation, in Exhibit-PB, that the same had been demanded by the in-laws of the deceased. Prosecution examined Krishnu Ram (PW2), the father, Smt. Kalawati (PW3) the mother and Gulaba Ram (PW4) the grand-father of the deceased to bring the charge home to the appellants and Kamla Devi, mother-in-law and Subhash Chand, brother-in-law of the deceased. Trial Court believing the testimony of the above named witnesses, convicted and sentenced the present appellants, as aforesaid. However, Kamla Devi, the mother in law and Subhash Chand, the brother-in-law of the deceased were acquitted. No appeal has been filed by the State challenging the acquittal of the above named two accomplices of the appellants. We have been taken through the evidence on record by the learned counsel for the appellants and learned Additional Advocate General. It is submitted by the learned counsel for the appellants that there is absolutely no evidence, not even a whisper, in the testimony of the above named three witnesses or for that matter, any other witness examined by the prosecution, that Baldev Raj , the husband of the deceased, ever harassed the deceased or made any demand of dowry. On perusal of the evidence, we find that what is submitted by the learned counsel for the appellants is absolutely correct. Since there is no evidence, worth the name, against appellant Baldev Raj, his conviction and sentence cannot be up-held. As regards appellant Ram Lal, in the initial statement Exhibit- PB under Section 154 of the Code of Criminal Procedure, Krishnu Ram made no allegation of dowry demand or of harassment or demand by Ram Lal appellant that the deceased pressed and massaged his 6 legs and feet in the night and continued doing so till he went to sleep. Also there is no mention in Exhibit-PB about the demand of cash of rupees 10,000/- or a Baltohi or refrigerator and booster for T.V etc. These allegations were made for the first time in the statement Exhibit- PD, which was recorded on 4-6-1992 and for which application Exhibit-PC was moved on 3-6-1992. We have already pointed out that on 2-6-1992, there had been change in the Investigating Officer of the case. Initially, the Investigation was being done by PW13 Dharam Singh and on 2.6.1992, PW14 Anant Ram Inspector/S.H.O. Police Station, Sadar Bilaspur took over the investigation from him. It was thereafter that the application Exhibit-PC was moved and the statement Exhibit-PD was recorded. We have every reason to suspect that it was at the instance of PW14 Anant Ram that application Exhibit-PC was moved and allegations of demand of dowry and harassment by appellant Ram Lal were made in the statement Exhibit-PD, which was recorded under Section 164 of the Code of Criminal Procedure. The first and foremost reason for our suspicion is that even though PW2 Krishnu Ram in his deposition in the Court has testified that he came to know that his statement Exhibit-PB had not been correctly recorded by the Police, on 28-5-1992, there is no explanation, whatsoever, for Krishnu Ram having not approached the Magistrate or any superior officer of the Police immediately after he came to know that his statement Exhibit-PB, under Section 154 Cr.P.C, had not been correctly recorded. Another reason is that it was on the very next day, of the day of taking over of the investigation by PW14 Anant Ram that the Magistrate was approached through application 7 Exhibit-PC for recording the statement of Krishnu Ram, under Section 164 of the Code of Criminal Procedure. Yet another reason is that Anant Ram (PW14) was present in the Court when statement Exhibit-PD under Section 164 of the Code of Criminal Procedure was supposed to be recorded, as admitted by Krishnu Ram (PW2), though he stated that when recording of the statement commenced, he was sent out by the Magistrate. The Magistrate, who recorded the statement, namely, PW9 J.K. Sharma has also made a similar statement. There is one more reason. We find from the record that after the recording of the statement Exhibit-PD, Anant Ram (PW14) recorded supplementary statements of all the witnesses under Section 164 Cr.P.C, containing similar allegations as are there in Exhibit-PD. In view of the above discussed position, we feel that even the conviction and sentence of appellant Ram Lal is not justified by the evidence on record. The result of the above discussion is that the conviction and sentence of both the appellants is not sustainable, hence the appeal is accepted. (Surjit Singh), Judge. (Surinder Singh) Judge. June 3, 2008. (bm)