1 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 558 of 2002 Decided on August 4, 2011 __________________________________________________________ State of H.P. …Appellant. Versus Kishori Lal ...Respondent. Coram The Hon’ble Mr. Justice R.B. Misra, Judge. The Hon’ble Mr. Justice Dev Darshan Sud, Judge. ¹Whether approved for reporting? For the appellant: Mr.R.K. Sharma,Senior Additional Advocate General with Mr.Rajinder Dogra, Additional Advocate General. For the respondent: Mr. Neeraj Sharma, Advocate. Justice R.B. Misra,J. (Oral) The present Criminal Appeal has come up for adjudication after the grant of leave to appeal has been granted under Section 378 (3) of the Code of Criminal Procedure in reference to judgment dated 24.4.2002, passed by Learned Sessions Judge Kangra at Dharamshala, H.P., in Sessions Case No.5-G/VII/2000, under Sections 498-A, 306 and 201 of the Indian Penal Code, in reference to FIR No.12 dated 18.01.1999, Police Station, Jawali acquitting the alleged respondent. 2. The prosecution case, in brief, is that Chandu Lal lodged a report on 18.1.1999 at about 5.30 P.M. that the dead body of his sister victim / Maya Devi was found in the 2 Khud, the victim was married to accused Kishori Lal about nine years back according to Hindu rites and on 17.1.1999 at about 10.30 A.M. accused Kishori Lal came to his house and told that Maya Devi was missing from the house since 14.1.1999, as such, his uncle Tippu Ram, went to Balehra in search of Maya Devi, while searching, dead body of deceased Maya Devi was recovered from the Khud. Accordingly, matter was reported to the police on the basis of which FIR No.12 of 1999 was registered. 3. After investigation, respondent-accused was charged for the aforesaid offences. In order to prove its case, the prosecution examined as many as 12 prosecution witnesses, whereas, the accused through his statement under Section 313 of Cr.P.C., has denied the prosecution case. 4. PW.11 Dr.Balbir Singh was posted as Medical Officer in Zonal Hospital, Dharamshala conducted the postmortem examination on the person of the victim- deceased and found antemortem ligature mark on the upper part of neck, reddish in colour with interruption at places. Diamension of ligature mark was 11” x ½ inch. One depressed reddish bruise over the right side below angle of right mandible (cheek), adjoining of nose and right eye was missing. Floor was white and no clotted blood or reddish stains were present on the wound or on the surroundings. 3 This injury was not crushed injury and was in favour of bitten by wild animals. This injury No.2 was postmortem in nature. PW.11 Dr.Balbir Singh has opined that the victim-deceased was died of asphyxia due to antemortem hanging and there was no evidence of rape. 5. PW.1 Sh.Chandu Lal in his endeavour to support the prosecution evidence has stated that husband of the victim-deceased, namely, Kishori Lal was working as mason however 5-6 months after the marriage, he started maltreating and beatings to his sister. Whenever, victim- deceased visited to his house she used to tell that accused was giving her beatings on suspicion that she was not having good character. However, Baradari Panchayat was arranged on their advise and for 5-6 months victim- deceased was kept nicely and thereafter again accused started giving beatings to her. In the Baradari Panchayat Kuru Ram, Pahu Ram of their village and Chuhru Ram of village Lagaru, District Kangra were present. Such Panchayat was held 10 or 12 times. On 9.1.1999, victim- deceased came to the house of PW.1 along with her husband, at that time, accused admitted that he had given beatings to the victim-deceased. On 17.1.1999 accused Kishori Lal came to the house of Chandu Lal (PW.1) and told that his sister was missing from the house since 14.1.1999. However, on search, dead body of victim- 4 deceased was found in the cave in the Khud. In cross-examination PW.1 has stated that he never went in search of his sister with accused on 17.1.1999. PW.1 has further stated that he was with his uncle and other persons when dead body of his sister was found in the cave. 6. PW.2 Smt.Mahindra Devi, Member of Gram Panchayat Salihar, has stated that on 18.1.1999 accused came to her and told that his wife was missing. On this, PW.2 advised the accused to report the matter to the police. Accordingly, search was made and the dead body of victim- deceased Maya Devi was recovered from the cave. PW.2, however, did not disclose about the Baradari Panchayat. 7. PW.3 Sh.Puran Chand, joined the investigation, and stated that broken pieces of bangles were shown to him in the Police Station. However, nothing substantial is emanating from the testimony of PW.3. 8. PW.4 Kumari Veena Devi, younger sister of the victim-deceased has stated that whenever victim-deceased used to come to her house, she told that accused used to give her beatings. PW.4 has further stated that on 9.1.1999, when victim-deceased came to her house, she told that she was beaten by accused, as such, PW.4 observed injury marks of blue colour on the body of her sister. As stated by PW.4, on 15.1.1999, accused came to their house and told that her sister was missing from the house. On 17.1.1999 5 accused came again and told that her sister was not traceable. On 18.1.1999 brother of PW.4, namely, Chandu and her uncle Tippu Ram went in search of victim-deceased and dead body of Maya Devi was found in the cave (Khud). PW.4 Kumari Veena Devi has stated in cross- examination that when she went to the spot alongwith 50-60 persons of their village, police was already there. PW.4 has further stated in cross-examination that she apprised the police that she noticed injury mark on the body of the victim-deceased . However, victim-deceased was neither taken to doctor nor anywhere for treatment regarding the incident of 9.1.1999. As per testimony of PW.4, victim- deceased was taken forcibly on 9.1.1999 by accused Kishori Lal and others, however, no report was lodged to the police or Panchayat regarding taking away of victim-deceased forcibly by the accused. 9. PW.5 Smt.Kalan Devi, mother of the victim- deceased, in her endeavour to support of the prosecution case, has stated that whenever victim-deceased used to visit her house was telling that she was beaten by the accused on the pretext that she was not working and she was having illicit relation with some person, however, such version was not made by PW.1 / Chandu Lal, the brother of the victim- deceased, except stating that victim-deceased was being beaten by the accused on suspicion of not having good 6 character. As such, as per advise of PW.5 Baradari Panchayat was convened and after suggestions of Baradari panchayat accused was keeping the victim-deceased very nicely for some time, however, thereafter, victim-deceased had been beaten by the accused. PW.5 has further stated that when her daughter and accused came together to her house, at that time, victim-deceased was having injury marks on her body as a result of beatings having been given to her by the accused. PW.5 has further stated that on 15.1.1999 accused came to her house and told that victim- deceased was missing from the house. Again on 17.1.1999 accused came to her house and told that victim-deceased was not traceable, however, nothing has been emanating from the testimony of PW.5, whereas, nobody has seen killing the victim-deceased. 10. PW.6 Sh.Tippu Ram, the uncle of the victim- deceased in his endeavour to support the prosecution case has stated that, whenever, victim-deceased came to his house, she used to tell that accused had given her beatings. PW.6 alongwith Kihru Ram, Kuru Ram, Rasila Ram and Pahu Ram had gone to the house of accused and advised him to behave properly and thereafter he was keeping victim / Maya Devi nicely for two months and again victim- deceased was beaten by the accused and 10 or 11 such Baradari Panchayats were held. 7 11. PW.7 Sh.Prem Chand, Patwari, PW.8 Purshotam Chand, PW.9 Om Prakash and PW.10 Subhash Chand in their official capacity, have endeavoured to support the prosecution case to the extent the role assigned to them, however, their testimonies are not very material to support the prosecution case. 12. PW.12 Sh.R.S.Pathania, Investigating Officer has conducted the investigation, recorded the FIR and recovered the belongings of the deceased and got conducted the postmortem. 13. On analysis of the prosecution witnesses and materials on record, we notice that no specific complaint of any kind was made to the Panchayat in writing or to the police. In view of testimonies of Chandu Lal (PW.1), Smt.Kalan Devi (PW.5) and Sh.Tippu Ram (PW.6), though several Baradari Panchayats were convened, but no endeavour was made by the prosecution to produce any record of the Panchayat or the persons present who participated in the Baradari Panchayat. Further, no specific complaint of beatings was ever lodged in the Panchayat or in the police station. We further notice that no independent witness from the locality has come forward to explain that beatings when and how given to the victim- deceased. The prosecution has failed to complete the chain regarding the fact that victim-deceased had committed 8 suicide due to any act of the accused since no demand of dowry was ever reported to the Panchayat or to the police or to any other person, as such, cruelty as defined under Section 498-A has not been made out. Unless the ingredients of Section 306 IPC are fully satisfied, no case under the charged offence could also be said to be made out. 14. In view of the aforesaid facts and circumstances, learned Sessions Judge has rightly arrived at the conclusion that the prosecution has miserably failed to prove its case beyond reasonable doubt. In our considered view also, the prosecution has failed to bring home the guilt to the accused and there is no scope of interference in the findings given by learned Sessions Judge. Accordingly, the present criminal appeal, being devoid of any merit, is dismissed. 15. The bail bonds furnished by the accused/respondent are hereby discharged. (R.B. Misra) Judge August 4, 2011 (Dev Darshan Sud) (Purohit) Judge