1 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 43 of 1993 Date of Decision: October 22, 2007. _______________________________________________________ State of H.P. Appellant. Versus Ram Lal and another Respondents. Coram Hon’ble Mr. Justice Surjit Singh, J. Hon’ble Mr. Justice Surinder Singh, J. Whether approved for reporting1? yes For the appellant : Mr Som Dutt Vasudeva, Addl. Advocate General. For the respondents: Mr Shrawan Dogra, Advocate. Surinder Singh, J . The respondents were put on trial and acquitted on 21-12-91, for the offences punishable under sections 498-A and 306 of the Indian Penal Code by the Additional Sessions Judge, in Sessions Trial No.6 of 1989. Respondent Ram Lal was the husband and Geeta Devi was mother-in-law of the deceased Anjana Devi. Anjana Devi aforesaid was married to Ram Lal, respondent in the month of December, 1985. As per the prosecution case, she committed suicide on 17.07.1988, by jumping into the village well. It is alleged that the respondents had treated the deceased cruelly and had been tortured both mentally and physically by them. Whether reporters of the Local papers are allowed to see the judgment? Yes 2 This was the case of the prosecution that within 15 days of the marriage of the deceased with respondent Ram Lal, she complained to her parents that the respondents gave her beatings and hurled abuses. On being asked by Durga Ram, (PW-1) father of the deceased, the reason for such a treatment from the respondent Ram Lal, he told him that he would use such a trick that his daughter Anjana Devi would not be traceable. Thereafter, in the month of January, 1986, when Anjana Devi had visited her parents during lohri festival, she complained of maltreatment by the respondents. PW1 her father asked the reason from her for such maltreatment then she informed that she had seen Geeta Devi respondent with her Devar in a compromising position in her bed room when she was serving the morning tea to her. Thereafter, they started maltreating her. About three months after the marriage of Anjana, the father of the deceased was informed that she was missing from the house of her in-laws. Next day, She was traced from near by the Baba’s Kutia in Gochar nallah. On inquiry, she had revealed that she was hiding herself on account of the fear from the respondents. Then, her father Durga Ram (complainant) PW1 took Jamaldeen, Ram Dass and Ram Saran of village Daslehra to the house of his son-in-law, Ram Lal respondent had apologized. The matter was compromised. Lastly, it was alleged that about 15 days prior to death 3 of her daughter Anjana Devi, one Tulsi Ram of village Tihri informed the complainant that Anjana Devi had told him to take her immediately from her matrimonial house to save her life, but when PW1 reached there, respondent Geeta Devi started hurling abuses and told him that she would turn out Anjana Devi from her house. Ram Lal respondent at the relevant time was employed as a driver in a private truck at Delhi. He had visited his village on 16.07.1988. Next day i.e. 17.07.1988 when Roshan Lal (PW-2) was in his house at about 6 p.m., he heard a noise from the road-side that a lady had fallen in the well. He went to the spot and took out the dead body from the well with the help of Nikka Ram and Nirjala Devi. He sent for the Doctor, who came on the spot after half an hour and declared Anjana Devi dead. Respondents were informed and intimation was also given to Durga Ram complainant, father of the deceased, who visited their village, thereafter made a statement Ex.PA to the police, alleging maltreatment and cruelty, on the basis of which FIR Ex.PK was lodged under section 306 of the Indian Penal Code. Police visited the spot, prepared the site plan Ex.PM and prepared the inquest report Ex.PF. Autopsy of the dead body was also got done. Post mortem report is Ex.PE. In the opinion of the Doctor the deceased had died due 4 to drowning. Photographs of the dead body were also taken. The police also took into possession two letters Ex.P-10 and Ext.P-11 written by respondent Ram Lal. After recording the statement of the witnesses and completing the investigation, a challan was presented in the court for trial. Respondents were charge-sheeted for the aforesaid offences under sections 498-A and 306 of the Indian Penal Code, to which they pleaded not guilty and claimed trial. To prove its case, prosecution examined its witnesses and the respondents were also examined under section 313 of the code of Criminal Procedure. After hearing the learned counsel for the parties and on appreciating the evidence on record jettisoned the prosecution case, thus acquitted both the respondents. The judgment of acquittal has been assailed by the State in this appeal on law and facts. We have heard Shri Som Dutt Vasudeva, learned Additional Advocate General for the State. He has ventilated that maltreatment and cruelty stand proved on record, therefore, with the aid of section 113-A of the Indian Evidence Act the respondents should have been convicted by the learned trial court. 5 Contra Shri Shrawan Dogra, learned counsel for the respondents has supported the impugned judgment of acquittal. To appreciate the rival contentions we have meticulously examined the evidence on record. It is an admitted fact that the deceased Anjana Devi had died due to drowning into the well. Her death is occurred within seven years from the date of her marriage with respondent Ram Lal. According to the case of prosecution she had committed suicide because of the cruelty meted out to her and according to the defense version the death was accidental. Legally, however grave and intriguing may be the circumstances, the court has to ensure that the burden of strict proof on the prosecution is not covertly substituted by surmise and conjecture. In order to appreciate the rival contentions, it is relevant for us to discuss and reappraise the evidence on record in the light of the well established judicial principles. Thus we proceed to examine it. The first occurrence of cruelty is alleged to have taken place within 15 days from the date of marriage of the deceased with the respondent Ram Lal and the other connected occurrence took place in the month of January, 1986 when Anjana Devi had visited her parents 6 during lohri festival when she had complained about seeing respondent Gita Devi in a compromising position with her Devar as aforesaid and the respondents started maltreating her. To substantiate this version, Durga Ram (PW1) and Shri Gian Chand (PW-11) brother of the deceased were examined but in their cross- examination it has been stated that Anjana Devi stayed in her in laws house for 15 days after marriage, thereafter Durga Ram went to the house of the respondents and brought Anjana Devi to his house. He did not say that she had herself come to his house and made a complaint to him about maltreatment as alleged. According to him, when she was brought to his house she had stayed there for 10-12 days, thereafter he took her to the house of her in laws. He did not ask anything about the maltreatment from the respondents, neither he made any report to the police nor to any responsible person of the village. This conduct of the complainant being the father of the deceased does not inspire confidence. It is surprising that when the deceased had visited the house of her parents, after 15 days of her marriage, she was taken back by the complainant himself to the house of the respondents, as stated by him, he did not ask anything about the alleged maltreatment, to his 7 daughter by the respondents. Neither this matter was reported to the police nor to any responsible person in the village nor he laid any protest any where else. The next circumstance is regarding missing of her daughter from the house of her in-laws and tracing after three days near Baba’s Kutia, the complainant has stated that her daughter had informed him that she was given beatings by her husband Ram Lal and because of that fear she was hiding herself in the jungle. However, Ram Lal respondent compromised the matter and he was apologetic. Ram Dass (PW-14) has also stated about the execution of the compromise. The said compromise did not find the light of the day before the trial court nor it was taken into possession by the police during investigation, to lend strength to their case, there is no explanation to this effect as to why this compromise was not procured and placed on record. This version also does not inspire confidence in view of the statement of Sarwan (PW-8), who has stated that the said incident had taken place three months prior to the death of Anjana Devi which comes to April, 1988, whereas, it is alleged in the complaint that the said incident had taken place three months after the marriage of Anjana Devi with Ram Lal respondent. Further Gian Chand (PW11) real brother of the deceased has deposed that the 8 deceased had disappeared two years after her marriage, again which comes to December, 1987. Thus, in view of the above conflicting evidence and glaring contradictions, the aforesaid circumstance is also not proved. Further according to Durga Ram (PW1) he had taken Shri Ram, Omi, Jamaldeen and one peon of village of Kalol to the house of the respondents and held a panchayat there, but out of them only Om Raj was examined as PW-9. According to him, 20 days prior to death of Anjana Devi, complainant had told him that Anjana Devi was maltreated by her in-laws. According to him, it was alleged that Geeta Devi had informed him that Anjana Devi was not working according to her command. However, in the cross-examination he has stated that such types of advices are common in a joint family. He did not give any particular instance of maltreatment. Jamaldeen (PW10) had allegedly visited the house of the respondents about 15 days prior to the death of Anjana Devi. He has stated that Durga Ram, father of the deceased, had told him to convey to the respondents to behave properly, but Anjana Devi did not complain or state anything to him. On this testimony he was not relied upon by the prosecution, as such he was declared hostile. In the cross-examination he has stated that the deceased did not complain about maltreatment or 9 inadequate food being given to her. Therefore, this circumstance also remained unsubstantiated, for want of legal evidence. With respect to last circumstances, i.e. 15 days prior to the death of the deceased one Vijay son of Sh.Tulsi Ram is alleged to have informed the complainant that the life of Anjana Devi was in danger. On this complainant, Jamaldeen, Ram Lal and Om Raj went to the house of the respondents, but Geeta Devi is alleged to have hurled abuses on them. Jamaldeen aforesaid did not say so. Others were not examined. Vijay Ram (PW-6) who was not in good terms with the respondent was examined and according to him on 28.6.1988 he had gone to his village Daslehra where Anjana met her who complained about the maltreatment by her mother-in-law and she is also alleged to have shown marks of injury on her person and informed him to convey her father that she be taken from the house of her in-laws, failing which the respondents would do away with her life. In the evening, he informed the complainant about the maltreatment by the respondents. But in the cross-examination the witness has admitted that he was not on visiting terms with the sister’s husband of respondent Ram Lal. Further according to him, the deceased was being beaten on account of bringing fewer dowries which was not the case of prosecution. According to him, this fact was not revealed by 10 him to the police when he was inquired, which raises a doubt on the authenticity of his version. Further the notice, which is alleged to have been served by the complainant on the respondents, was also not produced in evidence whereas its copy Ext.DA was produced and put to the complainant over which he admitted his signatures. Its perusal reveals that the deceased was living with her father for the last five months and the respondents did not bother to take her back, rather he gave eight day’s time to the respondents to settle the dispute. There was nothing about the allegation of maltreatment by the respondents mentioned in the notice as stated by him after the death of his deceased daughter in his statement under section 154 Code of Criminal Procedure and later in the court. The prosecution has also examined Smt. Nirmla Devi (PW-7), who is alleged to have met Anajana Devi at about 4 or 4.30 p.m. on the day she had died while she was cutting the grass nearby. The deceased is stated to have informed her that her husband had come previous evening and was acting as per the wishes of his mother. She did not know whether she could survive that night or not. At that time her husband Ram Lal respondent was also standing at a distance and called her. After some time, they left the 11 place. But in the cross-examination she has admitted that her husband had a dispute with Ram Lal 6-7 years ago and she never visited his house. Her testimony also does not inspire confidence as she was a chance witness and was not having good relations with the respondents. Similarly Simro Devi (PW12) was not in speaking terms with Anjana Devi as the relations between them were not cordial. There statements are to be taken with a pinch of salt, keeping in view the overall factual scenario. In nutshell, the prosecution has relied upon the above evidence to prove the cruelty against the deceased by the respondents and these allegations were put forth by nobody else but only by the father of the deceased and that too after the death of Anjana Devi and the witnesses examined to prove the aforesaid circumstances were either family members of the complainant who imputed the allegations of cruelty after the death of the deceased and there was nothing to corroborate that during her life time they had protested this fact and reported the matter to the police or the persons who were not having good relations with the respondent. The instances of cruelty which have been given above pertains to different times having no consistency. Even testimonies of the above witnesses do not inspire confidence at all. On 12 the top of it, the prosecution has also failed to prove that the respondents have abetted the deceased to commit the suicide. Even the story of suicide having been committed by the deceased appears to be doubtful. In this behalf statement of Roshan Lal (PW-2) requires to be appreciated, because at the relevant time he was in his house, which was quite nearer to the well. According to him, he was attracted by the noise, from the road side, at about 6 p.m. that some lady had fallen into the well. He took a rope and a stair-case from the adjoining house, put into the well and took out the dead body of Anjana Devi from the well, with the help of Nikku, Nirjla and one other person. The Doctor reached the spot after half an hour and declared Anjana Devi dead. In his cross-examination he has stated that when the dead body was taken out, the bucket Ex.P-4 was tied with the rope in the well. The said bucket pertained to the respondents, which fact was also corroborated by Om Parkash (PW3). He has further stated the well was unguarded / unfenced and a wood was lying there to keep one foot, while the other was required to be put on the top of the well while taking water, which fact stands corroborated by the photographs. He has further admitted that earlier it was raining. However, he denied that on account of rain, the surface had become slippery. Nirjala Devi (PW4) 13 did not support the case of the prosecution. However, she has stated that this well was in use. Investigating Officer has also stated that on account of draught in those days the water was being supplied through trucks and there was shortage of water in taps. Therefore, in these circumstances, the visit of Anjana Devi to the well cannot be said, to commit suicide that too with a bucket tied with a rope. As a matter of fact, presumption under section 113-A in the statute book, depicts a legal presumption though, however the time period of within seven years of marriage is the pre-requisite for such a presumption. If the circumstances in the contextual facts and the material on record substantiate the requirement of section 113-A and having regard to the language used in Section 498-A of the Indian Penal Code but in the facts and circumstances there cannot be any hesitation in coming to a finding that the prosecution could not prove the cruelty even from the conduct or circumstances put forth by the prosecution. It is not every type of harassment or every type of cruelty that would attracts Section 498-A of the Indian Penal Code. The prosecution is obliged to prove that beating and harassment was with a view to force wife to commit suicide or to fulfill illegal demands of husband and in laws. Thus, we are of the view 14 that neither the prosecution could prove cruelty as alleged nor abetment to commit suicide as aforesaid. On examination, we have found that the learned trial court has rightly picked up each circumstance, appreciated it and came to the correct conclusion in view of the settled proposition of law, which requires no interference. The appeal is accordingly dismissed. (Surjit Singh),J. October 22, 2007 (Surinder Singh),J. (D)