1 HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No.38 of 2001 Decided on March 7, 2011 State of H.P. …Appellant. VERSUS Vinay Kumar & anr ….Respondents Coram The Hon’ble Mr. Justice R.B.Misra, Judge. The Hon’ble Mr. Justice Rajiv Sharma, Judge Whether approved for reporting?1 For the Appellant: Mr.R.K. Sharma, Sr. Addl. AG For the Respondents: Mr. Virender Signh Rathore, Advocate. R.B.Misra, Judge The present criminal appeal has come up for consideration after the leave to appeal has been granted under Section 378 (3) of the Code of Criminal Procedure, in reference to judgment dated 3.10.2000 passed by learned Sessions Judge, Kangra at Dharamshala in Sessions Case No.11-J/VII/2000,thereby acquitting the respondents/ accused for the offences under Sections 302 and 498-A read with Section 34 of Indian Penal Code in reference to FIR No. 146 dated 29.9.1999 of Police Station, Jawali. Whether the reporters of the local papers maybe allowed to see the judgment? 2 2. The prosecution story, in brief, is that Suman Bala {the daughter of Kishori Lal (PW-1) and Shiv Dei (PW-2) and sister of Sanjeev Kumar (PW-3 } was married to Vijay Kumar, the brother of accused Vinay Kumar on 19.2.1999. After her marriage, Suman Bala/ (victim-deceased) went back to her parental house in the month of August, 1999 (black month), thereafter she went to her in laws house and while residing in her In-laws’ house, she died. Information to the police was given on 27.9.1999 by (PW-4) Kanta Devi, Pradhan about the death of Suman Bala and accordingly FIR was lodged. Post mortem of Suman Bala/(victim-deceased) was conducted and after completion of investigation, accused/respondents were charged of the aforesaid offences and the case was tried by the court of Learned Sessions Judge. 3. In order to prove its case, prosecution has examined as many as 12 prosecution witnesses, whereas through their statements under Section 313 Cr.PC accused/ respondents denied the same. 4. (PW-1) Kirhori Lal, father of Suman Bala (victim- deceased) has stated that marriage of victim-deceased was solemnized by offering dowry and other articles except fridge and after marriage, she had been coming to his house. After four months, when she came to his house, she told him that both the accused, namely, Vijay Kumar, Devar of victim- deceased and Leela Devi, mother-in-law of the deceased 3 were demanding fridge and for that harassing her. In that reference, PW-2 gave assurance to the victim-deceased that he will talk to them and thereafter he will purchase fridge. His daughter thereafter met him twice or thrice in his house and all the times, she told him that the accused persons used to harass her on account of demand of fridge and in that reference PW-1 summoned Leela Devi and her brother to his house for talk, however, they did not come to his house. 5. As per testimony of PW-1, when victim- deceased came in his house in the month of August (Kala Mahina) at that time she had undergone abortion. However, she spent the black month in house and left for her in law’s house. After ten days of her leaving from his house, PW-1 received information that the victim-deceased had died on 26.9.1999. As such, PW-1 visited the house of in laws of the victim-deceased. PW-1 came to know that her daughter had died as a result of head injury and accordingly he attended the funeral on 28.9.1999 and thereafter on 29.9.1999, he lodged the report Ext PA with the police. In cross examination, PW-1 stated that he did not tell to the police on 27.9.1999 about the cause of death of victim-deceased. On hearing the news of her death, Shiv Dei, mother and Sanjeev, brother of the victim-deceased left for the place of in law’s of his daughter along with the person who had come to inform about the occurrence on 26.9.1999. Number of other 4 villagers had also accompanied to Shiv Dei and Sanjeev and both his son and wife stayed in the house of the in law’s of his daughter. PW-1 had stated in his cross examination that when he reached to his house, his wife Shiv Dei was unconscious. However, police did not enquire anything from him on 27.9.1999. PW-1 has stated in the cross examination that when he met her daughter for the first time in the month of March, after her marriage, victim-deceased had referred regarding demand of fridge. However, this aspect was not stated to the police in his statement Ex PA. PW-1 had also stated that during his stay on 7/8 August, in his house, he called the mother in law and her brother, but they did not come. However, such aspect has not been recorded in the statement Ex PA. PW-1 further stated in his cross examination that the police inspected the place where the dead body of his daughter was lying on the bank of Pong Dam where she used to go for easing out daily. As per testimony of PW-1, made in cross examination, Devar of victim-deceased found her lying dead in the bank of river in the shallow water and had carried her to the house and thereafter one doctor Kharaiti Lal was called by them and Up pradhan of village Samkehar was also informed about the occurrence. When PW-1 went on 27.9.99 to the house of victim-deceased, Smt. Kanta Dei, Pradhan of Gram Panchayat Chalwara was also 5 present there and that time no allegations were made by anybody against the accused persons. 6. (PW-2) Shiv Dei, mother of the deceased, has stated that her daughter used to come to her house after marriage and when she came in the month of August, 1999, she told PW-2 that she required fridge, but did not state anything else. PW-2 told her that she would be given fridge in the month of ‘Navratras. Victim-deceased remained for a month in the house of her parents, thereafter she went to her in law’s house accompanied with her brother Sanjeev Kumar, but after 10 days only some person came to PW-2 and informing that her daughter had fallen in the river side and had died. Thereafter, PW-2 visited the house of the in- laws of her daughter and observed that the dead body of her daughter was lying inside the room of her husband. PW-1 reached on the next day of her death. PW-2 has further stated that she accompanied with that person to the house of in laws of the victim-deceased, who came to inform about her death and PW-2 alone stayed in the house of the in laws of the deceased, but her son did not stay there and next day Smt. Kanda Pradhan informed the police about this incident. As per testimony of PW-2 made in cross examination, police came to the house of accused persons on 27.9.99, and enquired from PW-2, but she could not state 6 anything because she was not in sense. In view of the testimony of PW-1, when victim-deceased came to his house, she stated about the demand of dowry, however, nothing specifically was indicated that who had demanded fridge. In view of the testimony of PW-2 when victim deceased came to her house in August, 1999, she only told that she required a fridge but did not say anything else regarding demand of fridge by anybody. The version of PW-2 that she had gone on 27.9.1999 with the informer to the house of in law’s of victim-deceased, she stayed there but her son did not stay there, is contrary to the statement of PW-1 that Sanjeev (the brother of victim-deceased), accompanied to PW-2 had gone and stayed in the house of in laws of victim-deceased. PW-1 very categorically stated that he had not stated anything to the police on 27.9.1999, whereas PW2 has stated that the police had enquired from her about the incident, but she could not state anything because she was unconscious. We find from the testimony of PW-2, made in cross examination that it was Vinay Kumar, i.e. devar of victim-deceased who brought the victim deceased from the bank of river to his house and called the doctor and informed the Up Pradhan Kanta Devi of Gram Panchayat Chalwara. 7 7. (PW-3) Sanjeev Kumar, brother of the Suman Bala/ (victim-deceased) has stated that when victim- deceased came to their house in March, 1999 and thereafter she came and stayed in their house for one month during black month and thereafter while she was going back, PW-3 accompanied her to her in law’s house on16.9.1999. PW-3 has stated that he had accompanied Vijay Kumar/(husband of the victim-deceased) and his brother Bir Singh and when reached at about 5.15 PM on 16.9.99 in the house of in law’s of the victim-deceased, the articles in the form of gift were given to the mother in law of the deceased. At that time, Leela Devi had stated to Suman Bala/victim-deceased that she had not brought any major item. PW-3 has stated that he did not accompany his mother to the house of the accused on learning the news of death of his sister, but went next day and where police came in his presence. The police had neither enquired from him anything at that time nor he told anything to the police. Father of the victim also reached next day i.e. on 27.9.99. In view of testimony of PW-3, he had not accompanied his mother, whereas PW-1 has stated that Shiv Dei and Sanjeev went together and stayed there together. Apparent contradiction is emanating regarding accompanying of PW-3 with his mother and staying at the house of parental/victim- deceased. Surprisingly, neither the police had enquired 8 about the incident from PW-1, PW-2 and PW-3 nor they informed about the incident, whereas Up Pradhan Smt. Kanta Devi (PW-4) informed the police on telephone on 27.9.99. PW-4, Kanta Devi, has stated that police had enquired from the parents of the deceased in her presence on 27.9.99 about the incident, but they did not tell anything to the police in her presence on that day. Such statement is also contrary to the statements of PW-1, PW-2 and PW-3 regarding inquiry as has been made by the police from them. 8. PW-5 Dr. Varinder Gupta, MO conducted the post mortem examination on the person of victim-deceased and has observed as follows: 1. Reddish blue contusion 10 cms x 7.5 cms on left side of face extending to left temporal region and left side fore head with underlying swelling. 2. Black eye left with sub conjectival hammrage and hyphaema PW-5 has not indicated anything except that injuries in question 1 & 2 were possible with blunt weapon including danda or fist blow and these injuries were anti mortem in nature and were sufficient to cause death in the ordinary course of nature. PW-5 did not observe any water in the stomach of the deceased. He has stated in the cross examination that it is possible that injury No.2 is the 9 resultant injury of injury No.1. Injury No.1 is possible if one person falls and strike with hard object. However, injury No.1 is not possible by falling on the surface of the water. 9. (PW-6) HC Kuldeep Singh, (PW-7) ASI K.S. Rana, (PW-8) Swaran Singh Jaryal, Photographer, (PW-9) HC Jai Chand, (PW-10) LHC Des Raj have averred in support of prosecution case to the extent the role assigned to them in their official capacity. However, their statements are not very material as these are formal witnesses. (PW-11) Dy.SP Mohinder Singh, Investigating Officer has stated that he visited the spot, took into possession blood stained clay from the wall of the room where the dead body was kept and recorded the statement of Shiv Dei, Sanjeev and Kanta Devi, whereas statement of Kishori lal was recorded after registration of the FIR. 10. Nothing is emanating from the testimony of PW-1 in support of the prosecution case. (PW-12) ASI Ambia Ram, on completion of investigation and on receipt of chemical examination report Ex PC and PK, prepared the challan and presented the same to the court. 11. On analysis of the prosecution witnesses and materials on record as well as on the examination report, it is not certain how injuries No. 1 & 2 were inflicted on the person of victim-deceased. No prosecution has come forward to indicate definitely how these injuries were inflicted on the 10 victim-deceased. Definite demand of fridge has not been said to have been made by accused/respondents. Nothing is emanating from the prosecution witness that Vinay Kumar has ever made any demand, whereas contrary to the prosecution case, it was Vinay Kumar who brought the dead body of the victim-deceased from the river side and kept in his house and called the doctor. Above Contradictions and discrepancies have been emanating from the testimonies of PW-1, PW-2 and PW-3, more so, when PW-2 had very categorically stated that during the stay of victim-deceased in the month of August, 1999, in her house, victim deceased had only stated that she required fridge and did not state anything else. Such specific averment of PW-2 contradicts the statement of PW-1 that victim-deceased, during her stay in his house, has indicated about the demand of fridge by the respondent/accused. However, keeping in view the apparent contradictions, discrepancies and improbabilities and the fact that none has seen inflicting injuries on the person of victim deceased, learned Sessions Judge has rightly arrived at the finding that the prosecution has failed to prove its case beyond reasonable doubt. In our considered view, prosecution has not been able to bring home guilt to the accused/respondents successfully. Therefore, we find no scope for interference in the impugned 11 judgment of the learned Sessions Judge. The criminal appeal, being devoid of any merit, is accordingly dismissed. 12. The bail bonds, furnished by the accused/ respondents, are discharged. ( R.B.Misra ), J. 7th March, 2011 (Rajiv Sharma), J. (sl) 12