HIGH COURT OF HIMACHAL PRADESH AT SHIMLA Cr.A. No. : 190 of 2003 Decided on: 28.11.2011 State of Himachal Pradesh ……… Appellant. Versus Santosh Kumar ………Respondent. Coram: The Hon’ble Mr.Justice Deepak Gupta, Judge. The Hon’ble Mr.Justice V.K. Ahuja, Judge. Whether approved for reporting? No. For the Appellant: Mr.Rajesh Mandhotra, Deputy Advocate General. For the respondent: Ms.Divya Sood, Advocate. Justice V.K. Ahuja, J.(oral): This is an appeal filed by the State of H.P. against the judgment of the court of the learned Additional Sessions Judge, Sirmaur District at Nahan, dated 31.12.2002, vide which he acquitted the respondent of the charge framed against him under Section 306 IPC. 2. Briefly stated, the facts of the case are that on 28.7.2000, at about 6.45 p.m., at Civil Hospital, Paonta, a statement under Section 154 Cr.P.C. was made by one Mohan Lal. In the said statement, he alleged that his younger sister Anita alias Suman, aged about 22 years, was married two years ago to Santosh Kumar, respondent. Her husband was working as a truck driver and no child was born from this wedlock. On 27.7.2000 at about 9.30 p.m., three persons came to his residence including brother-in-law of the respondent, his younger brother and informed him that his sister Anita __________________________________________________________________________ Whether reporters of local newspapers may be allowed to see the judgment? Yes. - 2 - has been admitted in Dehradoon Hospital in a burnt condition. The deceased had suffered 99% burn injuries while the respondent had also suffered 60% burn injuries. He suspected that the in-laws of his sister wanted to cremate the dead body and he asked that a second postmortem be conducted. The dead body was brought to Civil Hospital, Paonta and second postmortem was conducted. He also learnt that he had heard some women folk talking in the house of the deceased’s in- laws that she had gone to road side to visit her parents’ house and the respondent brought her back after giving her beating. It was further alleged that on the night when she was brought back this occurrence took place. The complainant further alleged that his sister used to complain to him that the respondent gives her beating under the influence of liquor and she also used to complain about dowry. He suspected that his sister may have been killed by the respondent and other members of his family. 3. On this report, a case was registered. After registration, the challan was filed before the learned Additional Chief Judicial Magistrate, Court No.2, Paonta Sahib, who committed the case to the learned Sessions Judge, who assigned the case to the learned Additional Sessions Judge for trial. The learned Additional Sessions Judge tried the respondent under the Section detailed above leading to his acquittal. 4. We have heard Mr.Rajesh Mandhotra, learned Deputy Advocate General for the appellant and Ms.Divya Sood learned counsel for the respondent and have gone through the record of the case. - 3 - 5. On appraisal of the report made by the complainant in his statement under Section 154 Cr.P.C., he had alleged three things. One that no child was born to the deceased and the respondent, but that was not alleged as a ground for maltreatment. He further alleged that he had heard that his sister was coming towards her parents’ house and was given beatings by the respondent and brought back. The next ground alleged was that his sister used to complain that her husband gives her beating under the influence of liquor and used to complain about dowry and not that he used to demand dowry articles and even the dowry articles were not alleged in the complaint. 6. In the Court, the said brother of the deceased, namely, Mohan Lal was examined as PW-1. In his statement he came up with the plea that after two months of the marriage, the deceased started revealing that the respondent harassed her after consuming liquor and he demanded dowry in cash and kind. He exhorted the respondent not to harass his sister. He admitted that this was revealed to him by the deceased two months after the marriage. However, he did not make any complaint to his wife or mother or his father. However, he came up with the plea that he orally reported the matter to village Gram Pancyayat. The Panchayat had also exhorted the accused not to ill-treat Anita. He admitted that he had not told the police that the matter was orally reported to the Gram Panchayat. He came up with the plea that the deceased had revealed to him about 6-7 times about this ill-treatment. However, he did not make any complaint to the police. He admitted that his sister never - 4 - wrote any letter to him and about ill-treatment also, he never received any letter from her. He further states that the accused used to beat up Anita in a drunken state saying that she has not brought anything with her in dowry. He also admitted that other members of the family of the accused reside in the immediate neighbourhood though in the same building. He also denied his knowledge if the deceased was immediately removed to the hospital for treatment. 7. From the above statement of the complainant, it is clear that nothing can be made out that any demands were made about the dowry in cash or kind. PW-1 Mohan Lal also did not state in regard to what he had heard from the women folk talking in the house of the deceased, when he went there, about beatings having been given in the morning by the respondent. 8. The prosecution had also examined PW-4 Roshan Lal to prove that Anita used to complain that her husband always harass and beat her after consuming liquor. He had advised the accused not to harass her. However, he was not able to state the month, date or the year or the place where this complaint was made to him by the deceased. In cross examination, he has stated that the complaint about the misbehaviour was made in 2000, but he does not remember the month or the date. He came up with the plea that the deceased was being harassed by the accused for bringing insufficient dowry. He did not state that he ever complained to the brother of the deceased or the mother of the deceased about this demand or harassment. - 5 - 9. PW-5 Ashok Kumar, who has a house at a distance of half furlong from the house of the accused, has stated that he learnt about the burning of Anita and went there and people were saying that she had caught fire by bursting of a kerosene stove. He was declared as hostile and was allowed to be cross examined by the prosecution, but nothing could be brought on record to show that he had deposed falsely. The statements of other witnesses are not material. 10. The cause of death has come up as burning, as per the statement of PW-3 Dr.Rakesh Dhiman, who conducted the autopsy on the body of the deceased Anita Kaushal. The deceased had been burnt upto 90% to 100%. 11. It is also in evidence in the statement of DW- 1 Dr.Amitabh Jain, Medical Officer that the police had presented an application before him Ext.DW-1/A seeking opinion whether or not the deceased was fit to make statement. He examined the deceased and opined that she was conscious and fully oriented and her statement could be recorded. He stated that he gave his opinion As Ext.DB on the application Ext.DW-1/A. The Head Constable recorded the statement of the deceased as Ext.DW-1/B. A perusal of Ext.DW- 1/A shows that it is an application submitted by the Head Constable, Police Station, Paonta dated 26.7.2000 at 11.30 p.m. and the Medical Officer had opined that she was fit to make statement. The said statement Ext.DW-1/B was proved to have been thumb marked by the deceased in which she had clearly stated that she was preparing the meals for her husband and at time of heating of the meals, her clothes - 6 - caught fire accidentally and her husband threw quilt, water and attempted to extinguish the fire. She clearly stated that her clothes caught fire accidentally and nobody is responsible for that. This statement, which was recorded during the investigation of the case, should have been proved on record by the prosecution so that it could be inferred that the investigation was conducted in a fair manner and no attempts were made to hide anything. However, this was proved in defence and the statement of the Medical Officer also suggests, as referred to above, that the respondent had also suffered injuries to the extent of 60%, which clearly shows that the respondent had made attempts to save his wife and had suffered these injuries. This dying declaration made by the deceased was sufficient to hold that the statement of the complainant and brother of the deceased cannot be relied upon that the respondent had abetted the commission of suicide by the deceased. The net conclusion drawn by the learned trial Court on the basis of the evidence cannot be said to be perverse calling for an interference by this Court. 12. In view of the above discussion, we accordingly hold that there is no merit in the appeal filed by the appellant, which stands dismissed. The bail bonds furnished by the respondent shall stand discharged. (Deepak Gupta), Judge. November 28, 2011 (V.K. Ahuja), (tilak) Judge.