IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 166 of 1996 Reserved on: 18.3.2010. Date of decision: 23.4.2010 State of H.P. …. Appellant. Vs. Rattan Lal and others ... Respondents. Coram The Hon’ble Mr. Justice Deepak Gupta, J. The Hon’ble Mr. Justice Sanjay Karol, J. Whether approved for reporting?1. No. For the appellant-State: Mr.Ram Murti Bisht, Dy. Advocate General For the respondents No. No. 1, 2 and 5. : Mr. Y.Paul, Advocate. Per Deepak Gupta, J.(oral) This appeal by the State is directed against the judgement dated 20.12.1994 delivered by the learned Sessions Judge, Bilaspur, in Sessions Trial No.18 of 1991 whereby he acquitted the accused of having committed an offence punishable under Section 302 read with Section 34 of the Indian Penal Code. The prosecution story, in brief, is that the deceased Radha Devi, daughter of PW-1 Balwant Singh and PW-2 Smt. Phulan Devi, was married to Rattan Lal accused. Ram Ditta and Sunehru Devi accused, both of whom have since died, were the parents of Rattan Lal. Piar Singh accused is the elder brother of Rattan Lal and Kushal Lata is his sister-in-law. It is not disputed that the marriage between Radha Devi and Rattan Lal took place some time in the year 1989. Her dead body was recovered from a tank behind the house of the accused persons on 23rd March, 1990. 1 Whether the reporters of the local papers may be allowed to see the Judgment. Yes. 2 Thereafter, her parents were informed about the death of their daughter. Since the death had taken place in suspicious circumstances the police also came to the spot. Investigation in the matter was conducted by PW-20 Hans Raj. According to him, on 23.3.1990 LHC Giata Ram informed him that the deceased had died and her dead body was found in a water tank behind the house of the accused. On this he recorded daily diary report Ext.PN and proceeded to the spot. By that time, PW21, ASI Amar Nath had already reached the spot and secured the place of occurrence. In the meantime, PW-1 Balwant Singh, father of the deceased, reached the spot. His statement Ext.PA. was recorded under Section 154 Cr.P.C, in which he stated that the accused persons had been ill-treating his daughter and harassing her for bringing less dowry and he suspected that she had been murdered by the accused. They sent the statement to the police station for registration of formal F.I.R. through LHC Giata Ram. Photographs of the tank and the deceased were got taken through the photographer. Inquest report Ext.PB was prepared at the spot. Thereafter, the body was sent for postmortem. The investigating officer inspected the house of the accused and during the course of investigation recovered inland letters Ext.PW-3 and P-4. He thereafter arrested the accused Rattan Lal on 24.3.1990. It is alleged that on 26.3.1990 Rattan Lal made a disclosure statement to the effect that he had kept concealed in his cup-board in the kitchen one silver pendent and one gold 3 nose pin, which he had removed from the dead body of the deceased. On the basis of this investigation challan was filed against all the accused. After trial the accused have been acquitted and hence the present appeal by the State. We have heard Shri Ram Murti Bisht, learned Deputy Advocate General for the State and Shri Y.Paul, learned counsel for the respondents 1, 2 and 5. As noted above, the respondents No. 3 and 4 have already expired and the appeal qua them stands abated. PW-1, Balwant Singh, is the father of the deceased Radha Devi. He stated that his daughter had complained to him a number of times that she was being harassed by her in-laws for not bringing sufficient dowry, especially a TV set. They also used to beat her. According to him, 3-4 months prior to her death, one lady whose name he could not recollect had told him that his daughter had been beaten by Piar Singh and Rattan Lal accused. Thereafter, he went to the village of the accused and met his daughter. The daughter complained that she was not being provided food and was being beaten by Piar Singh, his wife and Rattan Lal for not bringing dowry and TV set. Balwant Singh further stated that he promised to provide a TV set and came back to his own village and narrated the incident to his Pradhan. 5-7 days later his daughter was killed. He further stated that Piar Singh and Rattan Lal alongwith some other persons came to his house and inquired whether his daughter had come there. He 4 returned with them to their village and the body of the daughter was found in a water tank behind the house of the accused persons. The body was lying in the tank face downwards. The opening of the tank was barely 1-½ feet. He, therefore, suspected that she had been drowned in the tank after being killed. In cross-examination he admitted that neither before the marriage nor at the time of marriage any demand for dowry was made. He also admitted that his daughter Radha was treated by Dhani Ram, who is practicing witchcraft. The witness stated that Dhani Ram had successfully treated Radha. He admitted that she used to get fits for which she was treated by Dhani Ram. According to him, Dhani Ram had treated his daughter after one month of marriage. Whereas in examination-in-chief he had stated that the body of Radha Devi was lying in the tank face downwards, in cross-examination he admitted that when he reached the spot the body of his daughter was lying on the top of the tank. He also admitted that the police had already reached the spot. Admittedly, the accused Rattan Lal and the deceased had got married some time in June or July of the previous year. Whereas in examination-in-chief this witness stated that his daughter had complained to him about her ill-treatment within 10 days of the marriage, in cross-examination he stated that his daughter told him about the demand for dowry for the first time when she came to celebrate the Lohri festival, which is 5 celebrated on 13th January. It is important to note that this witness admitted that accused Piar Singh and his wife accused Kusum Lata reside in a separate house and are not residing in the same house as the husband and the in-laws of the deceased. Another important contradiction in the statement of this witness is that in examination-in-chief he stated that 3-4 months prior to the death of his daughter he was informed by an unnamed lady that his daughter was being beaten by Piar Singh and Rattan Lal. He stated that he had gone to the village of the accused and complained about this to the Pradhan. Later he stated that just 5 to 7 days after he returned from the village of the accused his daughter was killed. There is an inconsistency in the statement since in the first version he stated that he went 3-4 months earlier and in the second version he stated that he went a week prior to the death of the deceased. When confronted with the statement in cross-examination he stated that the lady had informed him about the beatings about 15 days prior to the death of the deceased. He also admitted that Piar Singh was not on good terms with his father and brother and there was litigation pending between them. The statement of PW-2, mother of the deceased, is to the effect that her daughter was being ill-treated by the accused. There is material contradiction in the statement of PW-2 and PW-1. Whereas PW-1 admitted that his daughter was undergoing some treatment, PW-2 denied the same. 6 PW-3 Bimla Devi stated that she was told by the deceased Radha that she was being ill-treated by her in-laws. In cross- examination she admitted that her father-in-law Bhag Singh and accused Ram Dittu are not on talking terms. She also admitted that her statement was recorded by the police after about 15 days. She could not deny the suggestion that there was litigation between her father-in-law and Piar Singh accused. PW-4’s statement is totally irrelevant and PW-5 turned hostile and did not support the prosecution case at all. PW-5 is the wife of Lachman Singh another son of Ram Dittu accused. She admitted that Piar Singh is residing separately and that there was criminal and civil litigation going on between Piar Singh and his father Ram Dittu. She also admitted that litigation was going on between Piar Singh and her husband Lachman Singh. PW-6 Devi Saran is the Pradhan of the Gram Panchayat. According to him PW-1 Balwant Singh and PW-2 had complained to him about the ill-treatment being meted out to their daughter by the accused. He further stated that Balwant Singh did not name any one specifically. According to him on 22nd March, 1990, i.e. one day prior to the body of Radha being found Rattan Lal accused met him and told him that Radha had broken her bangles and was not eating anything. Next day, Ram Dittu came to him and told him that Radha had run away and was not traceable. 7 PW-7 Mahant Ram stated that he was informed by Ram Dittu accused that his daughter-in-law was missing. He also went to the tank and according to him the body of the girl was in an upright position with her face upward. No ornaments were found on her body. He denied that Radha had ever told him that she was being harassed by her in laws. PW-8 Jagdish is a member of the Gram Panchayat Kapara. According to him, he visited the house of Rattan Lal accused on his request to try to patch up the differences between the two sides. Radha Devi deceased told him that her husband and in- laws were harassing her. He also joined the investigation and he saw the tank from which the body was recovered and according to him the body was in an upright position with face upwards. In cross-examination, he stated that Rattan Lal had asked him to intervene in the matter since the deceased was not doing any work. He admitted that Bhag Singh was having litigation with Ram Ditta for about 10 years. He also admitted that accused Piar Singh had litigation with Bhag Singh and his father as well as Lachhman Singh. Statement of PW-9 and PW-10 is not very relevant. Statement of PW-11 is that on 22.3.1990 he was called by Ram Ditta accused who informed him that his daughter-in-law Radha was not taking any food. He, therefore, advised Ram Ditta to call for a Panchayat. When he reached he was informed that the Pradhan would come the next morning. Thereafter, Lekh Ram 8 was called and Piar Singh and his wife were also called. This witness asked Radha why she was not eating, whereupon she stated that she was not hungry. He stated that he asked the family to settle the matter amicably. He did not notice any injury on the face of Radha. Next morning at about 8.00 a.m Sunehru and Piar Singh came to his house and told him that Radha had run away. He asked them to contact their own Pradhan. Then he went to the house of the accused and then Ram Ditta accused sent four people i.e. P.W-11 Sankar Singh, Vinod, Piar Singh and Lekh Ram to search for Radha in her parental home. Then they went to the house of Balwant, father of Radha, who informed them that Radha had not come to her parental home. In cross- examination he stated that no demand of dowry was made either during the marriage or later. PW-12 and PW-13 turned hostile. PW-14 is the doctor who conducted the postmortem and according to his opinion the death occurred between two to six hours of consuming food. He then clarified that since digestion had not started death could have occurred even immediately after consuming food. This witness stated that the injuries which he had noticed on the face and forehead of the deceased could be caused in a case of asphyxia by smothering. He also admitted that there is possibility of the body having been thrown into the water tank after smothering. This witness has been cross- examined at length. He admitted that signs of asphyxia could be found in cases of death by drowning, hanging, strangulation, 9 suffocation and poisoning by certain drugs. He was cross- examined why in his initial report he had only mentioned death by asphyxia and had not ruled out the other modes of asphyxia. PW-15 only took the photographs. PW-16 and PW-17 are formal in nature. PW-18 stated that on 22.3.1990 at about 4.00 p.m. he met deceased Radha. Her face was not covered with her Dupatta even though she was newly married. The witness gave way to her but did not look at her. However, she asked him to look at her face and he saw that her face had turned bluish and her head and face were swollen and she had been beaten. Radha started weeping and told him that she had been beaten by all the accused persons and major part of the beatings had been given to her by Piar Singh, accused. On inquiry she told him that she was beaten for bringing insufficient dowry. This witness also stated that thereafter he advised Radha to return to her home and he would send a message to her father. At about dinner time he heard the sound of a quarrel from the house of the accused. He did not go there and next morning accused Sunehru, mother-in-law of the deceased came to his house and inquired whether Radha had come to his house. After some time accused Ram Ditta also came to his house and told him that his daughter-in-law may have gone to her parental home. On this the witness told Ram Ditta accused that he should go to the village of the parents of Radha. In turn Ram Ditta asked him to go to the village which he refused. This witness stated that then 10 Ram Ditta went to answer the call of the nature he kept watching him. After accused Ram Ditta had eased himself he came to the tap fitted into the water tank. But he did not wash his hands with the water of the tank and instead opened the lid of the tank and took out a shawl from the water. Ram Dittu then stated that the body of Radha Devi might be there and went to the house of Pradhan. Then this witness informed the police telephonically and reported the entire matter to the police. He was also associated with the investigation of the case. The witness was confronted with his earlier statement Ext.DA in which there was no mention that he was informed by the deceased that major portion of the beatings was given to the deceased by accused Piar Singh. In the said statement there is also no mention that the deceased had told him on the previous day when she met him that the accused used to harass her for bringing insufficient dowry. The witness denied that there was any litigation going on between him and Piar Singh but then admitted that Piar Singh had filed a case against him after the death of Radha. He admitted he was a witness against Piar Singh in a case under Section 107/151 I.P.C which was tried in the year 1986-87. He could not remember whether he had deposed against Piar Singh in that case. He also admitted that a case was registered by the police against him, his wife and daughter-in-law on the complaint of Piar Singh. Most importantly he admitted that Piar Singh and his wife reside separately from the rest of the family since long. 11 This witness also admitted that on the morning of 24.3.1990 he did not tell any person that the deceased had met him on the previous date 22.3.1990 and complained to him about being beaten up by the accused or about the demand of dowry being made by them. For the first time he gave this version to the police. In cross-examination he admitted that prior to 22.3.1990 he had never talked to the deceased. He was also confronted with his statement Ext.DA in which there is no mention that he saw accused Ram Ditta going to ease himself and then lifting a shawl from the opening of the water tank. He could not even deny the suggestion that there were cases going on between Ram Ditta and him. The other two witnesses are the police officials who investigated the case. Admittedly there are no eye witnesses to the occurrence and the case is based on circumstantial evidence. The first circumstance is of maltreatment. This maltreatment can also be further divided into two parts. Firstly, the maltreatment by the husband of the deceased Rattan Lal and his parents Ram Ditta and Sunehru Devi accused. There are contradictions in the statement of PW-1 Balwant Singh and his wife Fulan Devi. The inquest report Ext.PB has been witnessed by the father PW-1. At that time PW-1 had only alleged that the deceased was being maltreated by her in-laws because she was not good looking. There was no mention of any demand for dowry especially a T.V. 12 set. If the father was making a complaint he could have easily stated that a demand of dowry was also being made. According to PW-1, 10-12 days after the marriage Radha told him that her in-laws were harassing her for brining insufficient dowry. Radha complained for the second time through a lady three-four months prior to her death that she had been beaten by Piar Singh and Rattan Lal accused. He then went to the house of the accused and met Radha Devi who again complained that she was not being provided food and was being beaten by Piar Singh, Rattan Lal and wife of Piar Singh. 5-7 days after the incident his daughter was killed. There is contradiction in his statement. Whereas in the earlier version he mentioned that he learnt about the maltreatment about 3-4 months prior to the death, in the later part of the statement he stated that his daughter was killed within 5 to 7 days. Balwant Singh PW-1 gave two different times about the receipt of second information of maltreatment through a lady. The mother gave a third version. Whereas according to PW-1 in the first version he stated that Bimla came to them 3-4 months prior to the death and in the second version he stated that she came 5 to 7 days prior to the death, the mother stated that Bimla came 20 to 25 days prior to the death. There are also contradictions with regard to the demands made. Whereas the husband talks about demand for T.V the wife talks about a VCR also. 13 Bimla Devi appeared as PW-3. According to her, initially Radha had told her that she was being harassed because she was not good looking. She did not make any statement that she had informed the parents of the deceased that the accused had given beatings to Radha and did not provide her food or that they were demanding a T.V. Her version is that the deceased told her that she was threatened by the five accused and she only conveyed this much to the parents. It would be pertinent to mention that PW-3 is the daughter-in-law of PW-18 and it stands proved on record that her father-in-law and the accused have long standing litigation going on between them. Her statement was recorded by the police after 15 days of the death of Radha. She also stated that Radha was not on visiting terms with her but they used to meet secretly. She also admitted that in 1987 a complaint was made against her, her father-in-law and other family members of the family by Piar Singh accused and thereafter they were not on talking terms. Therefore, her statement cannot be relied upon. The learned trial Court in view of these contradictions came to the conclusion that the prosecution has miserably failed to prove that the deceased was being maltreated. As far as the maltreatment by Piar Singh and Kushal Lata is concerned the story of the prosecution appears to be totally false. Admittedly, Piar Singh and his wife Kushal Lata lived separately from the rest of the family. Their relations with the 14 rest of the family were not at all cordial. In fact there was litigation between Piar Singh and his brother and his father. Therefore, it cannot be believed that they would join hands with the other accused to murder the deceased. The statement of PW-18, the star witness of the prosecution, does not inspire any confidence. He is admittedly a person having inimical relations with the accused. He made material improvements while making his statement in Court. As pointed out above, according to him, on 22nd March Radha had met him and told him about her sufferings. When her dead body was discovered the next day it would have natural for him to inform all the villagers about what she had told him. In fact, he should have done this immediately when he was told that she was missing. This would have been normal human conduct. However, according to him he mentioned some of the facts that too, not all, only for the first time to the police. Even the statement made to the police is incomplete and all that has been stated in Court is a new and concocted version. The statement of PW-18 is so full of infirmities that it cannot be relied upon under any circumstance. There are contradictions in the version of the parents. On the one hand it is alleged that the maltreatment was for bringing insufficient dowry and on the other hand that the maltreatment was on account of the fact that the deceased was not good looking. It has come in evidence that the deceased was 15 undergoing some treatment. PW-1 Balwant Singh admitted that no demand of dowry was made at the time of marriage and that even prior to her marriage Radha was being treated by Dhani Ram who practices witchcraft. Therefore, the possibility of Radha suffering some severe psychiatric disorder cannot be ruled out. Assuming for the sake of argument that the deceased was murdered, which appears to be correct, because she could not commit suicide in such a small tank, but admittedly Piar Singh and Kusam Lata did not live in the house. Out of the three other accused it is not proved who committed her murder. In fact the evidence led by the prosecution itself shows that next morning when the deceased was missing the accused went to the houses of all the villagers including those with whom their relations were not good to inform them about the fact that the deceased was missing. The medical evidence is totally inconclusive to say the least. The doctor PW-14 has not made any effort to pin point what cause the asphyxia. He did not point out the particular form of asphyxia which caused the death. He also did not rule out death due to drowning since a lot of water was found in the stomach of the deceased. Modi in his treatise on medical jurisprudence has stated that it is almost impossible for water to get into the stomach if a body is submerged after death. This indicates that the death may have been due to drowning. If it is 16 a case of smothering or drowning there is no evidence to link any of the accused with the death. In fact, it cannot be said with certainty that the death was caused due to