IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 9 of 2009 Date of judgment: June 16, 2009 Subhash Chand .. Appellant Versus State of H.P. and others …Respondents. Coram The Hon’ble Mr. Justice Surjit Singh, Judge. Whether approved for reporting?1 Yes For the Appellant : Mr. Ajay Chandel, Advocate. For the Respondent No.1: Mr. Ramesh Thakur, Assistant Advocate General. Surjit Singh, J. (Oral) Appellant Subhash Chand, who has been convicted of offences, under Sections 304-B and 498-A IPC, for allegedly harassing/subjecting to cruelty, his wife Kanta Devi (deceased) and committing the offence of dowry death, and sentenced to undergo rigorous imprisonment for seven years and to pay a fine of Rs.10,000/- for offence, under Section 304-B IPC and to undergo rigorous imprisonment for two years and to pay a fine of Rs.5000/- for offence, under Section 498-A IPC, by the trial Court, vide judgment dated 31.12.2008, has preferred this appeal, assailing his conviction and sentence. 2. Allegations, which led to the challaning, charging and trial of the appellant, may be summed up thus. Deceased Kanta Devi was married to the appellant on 4.12.1999. For initial 15-20 days she was kept well by the appellant and his Whether reporters of the local papers may be allowed to see the judgment? - 2 - parents, namely Maya Devi, mother and Dharam Pal father as also other members of his father’s family, namely Som Dutt, his brother, Rama Devi, wife of his brother Som Dutt and Anoop Kumar, another brother, but thereafter they started harassing her to pressurize her to bring money from her parents. Within a few weeks of marriage, deceased was sent to her parental place by the appellant with a direction to bring a sum of Rs.25,000/-. Deceased was provided that amount of money by her father PW-3 Bihari Lal and her brother Sukhdev, who works at Ludhiana. Eight-ten days thereafter the deceased was again sent to her parental place and this time demand was made for a sum of Rs.50,000/-. The father of the deceased was unable to meet this demand for huge amount of money and that too within a short span of his having met the earlier demand for Rs.25,000/-. Deceased stayed at her parents’ place for about 1 ½ month or so. 3. On 17th April, 2000, the appellant, accompanied by his father and some respectable elderly persons of his village, including Pardhan of the Panchayat, went to the parental place of the deceased. Father of the deceased told the delegation that the deceased was being harassed by the appellant and her in- laws for bringing more and more money and he was unable to meet the demands. Pardhan of the Panchayat of the appellant assured that no such demand would be made in future and the deceased would not be harassed. Acting upon the said assurance, PW-3 Bihari Lal, father of the deceased, sent the deceased to her in-laws. On 23rd April, 2000, the deceased died - 3 - of burning. Parents of the deceased were informed and an uncle of the deceased, named PW-1 Suram Singh, reached the village of the deceased around 5 or 5.30 PM, on 23rd April, 2000 itself. He saw the dead body completely charred. Around 8 or 8.30 PM, father of the deceased, namely PW-3 Bihari Lal also reached the spot. By then SHO, Police Station, Una, namely PW-12 Harnam Singh had also reached the spot. PW-3 Bihari Lal purportedly made a statement, under Section 154 Cr. P.C to PW-12 SI Harnam Singh. Record of the said statement is Ext.PW3/A. As per this statement, the deceased felt harassed because the appellant was in the habit of drinking liquor and eating meat, which the deceased did not like. This she complained to PW-3 Bihari Lal on her first visit to his place about 15 days after the marriage. In the said statement Ext.PW3/A, there was not even a whisper about dowry demand or the deceased having ever been beaten up or PW-3 Bihari Lal having paid any amount of money. PW-13 Rani Bindu, then Dy. S.P., Una also visited the spot on 24th April, 2000. During her visit, PW-3 Bihari Lal, father of the deceased was there. To the said Dy. S.P., PW-3 Bihari Lal did not complain that the appellant or his parents, brothers and sister-in-law demanded dowry or that they subjected her to cruelty or harassment. 4. About 1 ½ month after the death of Kanta Devi, i.e. on 7.6.2000, a complaint was filed by PW-3 Bihari Lal in the Court of Chief Judicial Magistrate, Una alleging that the appellant, his parents, brothers and the wife of one of his brothers had murdered his daughter Kanta Devi, but the police - 4 - were not investigating the matter fairly and honestly, under the influence of the appellant and his parents. In the said complaint, allegation was made for the first time that the appellant and his parents used to harass the deceased with a view to forcing her to bring money from her parents. Even in the said complaint there was no allegation that the deceased came with a demand for Rs.25,000/- seven-eight days after the marriage and she was again sent about fifteen days after the marriage to demand another sum of Rs.50,000/-. 5. The aforesaid complaint was sent to the police for investigation, under Section 156 Cr. P.C. Both the FIR and the complaint were investigated, together and the appellant, his parents, two brothers and a sister-in-law were challaned, under Sections 304-B and 498-A read with Section 34 IPC. 6. It was during the course of trial that the story regarding the deceased having been sent by the appellant and his parents to fetch a sum of Rs.25,000/- and again another sum of Rs.50,000/- , from her father, had been introduced, by the father of the deceased, namely PW-3 Bihari Lal and a brother of the deceased, namely PW-4 Prem Chand. They were duly confronted with the earliest version Ext.PW3/A as also the complaint Ext.DA and the statement, under Section 161 Cr. P.C, Ext. DD made by PW-4 Prem Chand. 7. Learned trial Court has believed the version given by PW-3 Bihari Lal and PW-4 Prem Chand, in the Court, despite the fact that their testimony is in total contradiction with the earliest version given to the police, vide statement Ext.PW3/A, - 5 - by PW-3 Bihari Lal as also the complaint Ext. DA, presented to the Chief Judicial Magistrate, by PW-3 Bihari Lal. Trial Court has observed that there had been allegations of bias and unfairness against the police officials from the very beginning and, therefore, it could not be said that statement Ext.PW3/A, under Section 154 Cr. P.C, had been recorded correctly and this was especially so when PW-3, while in the witness box, categorically stated that he told PW-12 SI Harnam Singh that he was unable to make any statement, on account of being under shock. 8. However, the learned trial Court has not noticed that no suggestion was given to PW-12 SI Harnam Singh despite the fact that he was allowed to be examined and also cross- examined by the counsel, representing PW-3 Bihari Lal, that statement Ext.PW3/A, had not been made by PW-3 Bihari Lal, but he recorded the said statement on his own and obtained Bihari Lal’s signature. Also, the learned trial Court has not taken note of the statement of PW-13 Dy. S.P. Rani Bindu, who very categorically stated that she visited the spot on 24th April, 2000 and no allegation of dowry demand was made to her by anybody, including father of the deceased PW-3 Bihari Lal. 9. I have heard the learned counsel for the parties and gone through the record. 10. As already noticed, in the earliest version, given to the police, vide statement Ext.PW3/A by PW-3 Bihari Lal, not only that there is not a whisper of the allegation that Rs.25000/- were demanded by the appellant and his parents and that demand had been made within a few days of the marriage and - 6 - that soon thereafter another demand for a larger amount of Rs.50000/- had been made, but also there is no allegation of any harassment or cruelty. What is recorded in Ext.PW3/A is that on her first visit, about 15 days after the marriage, deceased had complained that she felt suffocated and uncomfortable on account of the appellant being in the habit of consuming liquor and eating meat. If a man consumes liquor or eats meat that cannot be said to be a case of harassment of wife, within the meaning of Section 498-A IPC. PW-3 Bihari Law was duly confronted with Ext.PW3/A, the statement under Section 154 Cr. P.C, made by him to PW-12 SI Harnam Singh. 11. Even in complaint Ext. DA, which PW-3 Bihari Lal lodged about 1 ½ month after the occurrence, there is no mention of amount of Rs.25,000/- having been paid, on account of dowry demand, by the appellant and his parents or a further demand for Rs.50,000/-. PW-3 Bihari Lal was duly confronted with complaint Ext. DA. He could not offer any explanation, whatsoever, for the omission of these material facts in the complaint, despite the fact that such a complaint was lodged about 1 ½ months after the occurrence and was drafted by a legal practitioner. 12. PW-4 Prem Chand, a brother of the deceased was also confronted with his statement Ext. DD, recorded by the police, under Section 161 Cr. P.C. In that statement also, there is no mention not only of payment of Rs.25,000/- or demand for another sum of Rs.50,000/-, but also of the allegation that - 7 - the deceased was harassed for seeking dowry from him or his father. 13. From the above discussion, it is clear that story regarding harassment of the deceased, on account of dowry demand, is an afterthought and, hence, not believable. Now when there is no evidence that there was any demand for dowry nor is there any evidence that the deceased was ever subjected to cruelty or harassment, neither the charge of dowry death, under Section 304-B IPC nor the charge of cruelty, under Section 498-A IPC can be said to have been established. 14. Consequently, appeal is accepted. Impugned judgment of the trial Court, convicting and sentencing the appellant for offences, under Sections 498-A and 304-B IPC, is set aside and the appellant is acquitted. He being in jail, serving out the sentence pursuant to the impugned judgment, is ordered to be set at liberty, forthwith. June 16, 2009(ss) (Surjit Singh), J