IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.Appeal No.647 of 1996. Decided on: June 19, 2010. State of H.P. …Appellant. VERSUS Desh Raj ….Respondent. Coram The Hon’ble Mr.Justice R.B.Misra, Judge. The Hon’ble Mr.Justice V.K.Sharma, Judge. Whether approved for reporting?1 For the Appellant: Mr.Anil Jaswal with Mr.Vikas Rathore, Deputy Advocate Generals. For the respondent: Ms.Kanta Thakur, Advocate. R.B.Misra, Judge (Oral) 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 the judgment dated 8th April, 1996, passed by learned Additional Sessions Judge, Mandi, District Mandi, in Sessions Trial No.12 of 1994, thereby acquitting the respondent / accused for the offence under Sections 306 and 498-A of the Indian Penal Code. Whether the reporters of the local papers maybe allowed to see the judgment? …2… 2. In order to adjudicate the present criminal appeal, it is necessary to give the factual background of the prosecution case. On 13.3.1994, a report was received through Police Post, Janjohali at about 8.15 PM that Puran Chand, Pradhan of Gram Panchayat, Gudaha, gave information that dead body of Kamla Devi, who was missing from the house for the last 7 – 8 days, was hanging on the devdar tree in Devkidhar, on which SI / SHO, along-with police party, went on the spot and the statement of Dhani Ram was recorded. According to him, his sister Kamla Devi was married to Desh Raj (accused) about five years back and both were blessed with two daughters; one was about 4 years and the second was of 1 ½ years of age. Accused Desh Raj was mal-treating Kamla Devi and giving her beatings. About three months back, she was turned out from the house by Desh Raj at night time when she remained in the house of her uncle and thereafter the matter was compromised by Up- Pradhan, Gram Panchayat, Baryogi. However, on 6.3.1994, Desh Raj gave beatings to Kamla Devi, who left the house on 13.3.1994, her dead body was found hanging on Devdar tree. Accordingly, First Information Report was lodged under Sections 306 and 498-A of the Indian Penal Code. …3… 3. The case was committed to the Sessions Court and the prosecution in order to prove its case has examined as many as 15 witnesses, whereas, the accused has denied the prosecution case. 4. PW-1 Dhani Ram, the brother of deceased Kamla Devi, has stated that they were seven brothers and sisters and Kamla Devi (deceased) was married to the accused six years back and they had two daughters from the wedlock. After their marriage, Kamla Devi had been telling PW-1 and family members that her husband had been mal- treating her for small matters off and on. He used to beat her also. He has also stated that three months prior to her death, she had come to the house of her maternal uncle Dagu Ram and on the next day the maternal uncle of PW-1 came to his house and told to his father that Kamla Devi had come to his house after she was given beatings by the accused. As per the testimony of PW-1, then his father, Up-Pradhan Dev Mani and Member Panchayat Mohan and his maternal uncle went to the house of the accused and persuaded Kamla Devi (deceased) and the accused to live together peacefully as they had become parents of two children. On 9.3.1994, PW-1 came to know that Kamla Devi was missing from 6.3.1994 and on the same day she was given beatings by the accused and …4… thrown from the upper storey of the house. PW-1 has further stated that on 13.3.1994, the dead body of Kamla Devi was found hanging on a devdar tree at a height of 40 feet above the ground, then Ishwar Dass climbed up on the tree and cut the rope and she was then brought down in the presence of the police and other witnesses. As per the testimony of PW-1, Kamla Devi committed suicide because of the mal-treatment and beating of the accused. 5. PW-1, in his cross examination, has stated that Kamla Devi told PW-1 and the family members about the mal-treatment of the accused after one year of her marriage and thereafter about 30 to 40 times in the period of four / five years. However, PW-1 has very categorically indicated, in his cross examination, that neither PW-1 nor his family members made any report to the police. 6. PW-2 Bala Ram, another elder brother of deceased Kamla Devi, has supported the prosecution case and has stated that Kamla Devi used to complain about the mal-treatment of the accused and she was being advised to live peacefully. As per the testimony of PW-2, Kamla Devi started complaining after one year of her marriage. However, complaint about the mal-treatment and beating was never reported to anybody in writing. PW-2 has further stated that three months prior to …5… the occurrence, Kamla Devi had come to the house of Dagu Ram, her maternal uncle, who came to PW-2 and family members on the next day and accordingly the matter was reported to the Panchayat. However, as per the testimony of PW-2, on 13.3.1994 the dead body of Kamla Devi was found hanging on a Devdar tree in the forest. 7. In his cross examination, PW-2 has stated that both the daughters were born at the house of Desh Raj and as per the testimony of PW-2, Kamla Devi used to come to their house whenever she was maltreated or given beatings by the accused. 8. PW-3, Jiuni Devi, an independent witness, has stated that the house of deceased was about 20 feet from the house of PW-3 and according to PW-3 the dead body of Kamla Devi was found hanging on a Devdar tree in the forest. She has further stated that the day Kamla Devi was found missing, she heard the cries from her house in the morning and PW-3 does not know as to why she was weeping as Kamla Devi never told PW-3 anything. 9. PW-3, in her cross examination, has stated that the accused is not the real brother of her husband and she climbs on the trees with her shoes during winter season. In her cross examination, she has further stated that Kamla Devi used to tell PW-3 that she does not like the accused Desh Raj …6… and she will leave his house or commit suicide and Kamla Devi used to go to her parental house without the permission of the accused without any reason and she used to tell that her parents insist upon her to live with her husband against her wishes and for that reason she would die one day. PW-3 has also stated in her cross examination that accused lives with his mother and daughters. 10. PW-4, Tulsi Ram, the father of Kamla Devi, while supporting the prosecution case, has stated that Kamla Devi had been complaining against the accused that the accused had been telling that sufficient dowry has not been brought by her and that she had been given beatings by her husband and in-laws. The matter was reported to Up-Pradhan. As per testimony of PW-4, Kamla Devi had come to the house of Dagu Ram, her maternal uncle, who went to their house and told about the same to them. Then PW-4, Dagu Ram and Up-Pradhan Dev Mani went to the house of the accused and advised them to live peacefully. 11. In his cross examination PW-4 has stated that he had never went to the house of Kamla Devi after her marriage. Again said, he had gone to the house of the accused along with Dhani Ram, Dev Mani and Dagu Ram. …7… 12. PW-5 Kamla Devi, wife of Khem Singh, an independent witness, has stated that after eight days of her missing, the deceased Kamla Devi was found hanging on a Devdar tree in the forest and she had revealed this fact to Thakur Dass, another villager and all came there. On the next day, police came there. 13. PW-5, in her cross examination, has stated that she told Thakur Dass that she was in the house of the accused and many people were there. PW-5 has further stated in her cross examination that she used to meet the deceased daily and Kamla Devi (deceased) used to tell her that she does not want to live with the accused but she did not tell the reason. The deceased also told PW-5 that she did not like the house of her husband and that is why she wanted to die. 14. PW-6, Daya Ram, the maternal uncle of deceased Kamla Devi, while supporting the prosecution case has stated that deceased came to his house three months prior to her death and told that the accused had given her beating and on the next day PW-6 went to the house of her father Tulsi Ram. Then Tulsi Ram and Dev Mani, Up-Pradhan, Mohan, Member Panchayat and his elder brother Dhani Ram went to the house of the accused and Kamla Devi also accompanied them. He has further stated that …8… his brother told him that they persuaded the couple to live peacefully and amicably. From the testimony of PW-6, it appears that Dagu Ram did not go to the house of the accused for settlement purpose and he was apprised about it by his brother that Kamla Devi (deceased) and her husband (accused) have been persuaded to live peacefully and amicably. As per the testimony of PW-6, in cross examination, it has been stated by him that only once prior to that the deceased came to him and apprised him that the accused was mal-treating her and PW-6 has given assurance that he would advise the accused to live peacefully. However, PW-6 has never visited the house of the accused. 15. PW-7, Dev Mani, Up-Pradhan of the Gram Panchayat, has stated that Kamla Devi came to him three months prior to the death and on the next day of her coming to the house of her maternal uncle, Kamla Devi told him that she does not want to live in the house of the accused as he is very poor man and PW-7 was requested to settle their dispute. PW-7 also told her that he is not empowered, better she should go to the Court of law. 16. PW-8, Puran Chand, Pradhan of the Gram Panchayat, is a formal witness. 17. PW-9 Dr.Jiwa Nand Chauhan, M.O. Zonal Hospital, Mandi, has conducted the post mortem …9… examination of deceased Kamla Devi, the report of the same is reproduced as below:- “EXAMINATION OF NECK There was a horizontal ligature mark over the neck above thyroid cartilage interiorly and encircling the neck posteriorly, producing two deep grooves lying side by side each of the size 1 cm with abraided skin on the floor, white glistening, hard like parchment, with an inverted ‘V-Shaped’ (/\) spot in front of neck right side just below the chin of the size of 4 cm x 5 cm. The grooves were more prominent on the postero-lateral aspect just below right angle of mandible to just below left angle of mandible measuring 16 cm long, 2.5 cm wide at the posterior midline and 2 cm on the sides with each groove measuring 1 cm. Less prominent on the anterior aspect 10 cm long and 1cm wide with about 2 cm spared area in the middle of neck. The ligature mark is continuous with the inverted V (Λ) mark described above.” In the opinion of PW-9, Dr.Jiwa Nand Chauhan, the deceased died of asphyxia as a result of hanging. 18. PW-10, Narain Singh, the photographer, has stated that police called him and he accompanied them to the spot and took photographs Ext.P-10 to …10… Ext.P-16, the negatives of which are Ext.P-17 to Ext.P-23. 19. PW-11, Ishwar Singh, has stated that he was asked to climb on the tree and then he cut the rope to bring down the dead body on the ground. According to PW-11, 5/6 persons had also climbed on the tree and PW-11 had climbed the tree without shoes. The tree was about 40 feet in height and there were branches of the tree at a height of 2 ½ - 3 feet from the ground. As per the testimony of PW-11, it was easy to climb the tree. 20. PW-12, M.C.Bholashankar, has stated that he had recorded Rapat No.15, copy of which is Ext.PW- 12/A. PW-13 HC, Parkash Chand and PW-14, Constable Karam Singh, have supported the prosecution case in the usual way in the discharge of their official duties. 21. PW-15, S.I. Kuldip Chand, SHO Gohar, has stated that at his instance Ishwar Singh and other persons climbed on the tree and brought down the dead body of Kamla Devi (deceased) which was hanging at a height of 35 feet from the ground. He has further stated that one arm of deceased Kamla Devi was found wrapped in the rope and the other hand was hanging down. He filled in the inquest report Ext.PW-8/A in the presence of PWs Anant Ram and Puran Chand. He also prepared Site plan …11… Ext.PW-15/B. He has also stated that injury below the chin of the deceased was noticed because of the pressure of the knot of the rope. Photographs of the dead body were also taken. 22. PW-15, in his cross examination, has stated that father of the deceased, Tulsi Ram, had not stated to him that the accused demanded dowry from the parents of the deceased. 23. On analysis of the prosecution witnesses and the relevant material on record, we notice that PW-1 Dhani Ram, PW-2 Bala Ram, the brothers of the deceased and PW-4, Tulsi Ram, father of the deceased, being the interested witnesses, have only endeavoured to support the prosecution case. Besides this, no other independent witness of the locality, where Kamla Devi (deceased) used to reside for more than five years, had supported the case of the prosecution. No independent witness has ever been brought to indicate that Kamla Devi (deceased) was ever mal-treated or was given beatings. Even PW-7, Dev Mani, Up-Pradhan, has stated that Kamla Devi wanted to get rid of accused Desh Raj as her husband was a poor man. 24. PW-1, Dhani Ram, has stated that he came to know that Kamla Devi was missing from 6.3.1994 and on 6th she was given beatings by the accused and threw her from the upper storey of the house. This …12… aspect, however, has not been proved or examined by the prosecution. From the testimony of the prosecution witnesses, it is revealed that there are contradictions regarding the mal-treatment and beatings meted out to the accused. According to the prosecution witnesses, when some controversy arose about the mal-treatment, it is at the instance of Dagu Ram and others, the matter was settled and the deceased and accused were persuaded to live peacefully and thereafter two children were born from their wedlock. 25. In our considered view, it is nobody’s case that the deceased was beaten and thereafter she was lifted to such a height and hanged from the branches of a tree. The statement of Dr.Jiwa Nand Chauhan (PW-9) also does not indicate that the deceased was beaten and as per the opinion of PW-9 the cause of death of the deceased was asphyxia as a result of hanging. We find apparent contradictions in the version of the prosecution witnesses. PW-3, who used to meet the deceased regularly, has very categorically indicated in her cross examination that the deceased was telling her that she does not like accused Desh Raj and she wanted to leave his house or commit suicide. PW-5, Kamla Devi, wife of Khem Singh, has stated that she also used to meet the deceased daily and PW-5 was …13… told by the deceased that she does not want to live with the accused but she did not tell the reason. According to the version of PW-5, the deceased did not like the house of her husband that is why she wanted to die. 26. In the above facts and circumstances and on scrutiny of the prosecution witnesses, we find that the prosecution failed to bring home the guilt to the accused and the prosecution has failed to prove its case beyond reasonable doubt. In our considered view, the accused cannot be brought under the purview of Sections 306 and 498-A of the Indian Penal Code. Consequently, the appeal, being devoid of any merit, is dismissed. 27. Bail bonds, furnished by the respondent, are hereby discharged. ( R.B.Misra ), J. June 19, 2010. ( V.K.Sharma ), J. (soni)