IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No.474 of 1999 with Cr. Appeal No.190 of 2000. Judgment reserved on 2nd December, 2010. Date of Decision: 09th December, 2010. _______________________________________________________ 1. Cr. Appeal No.474 of 1999. Munshi Ram and others .. Appellants. Versus State of Himachal Pradesh .. Respondent. For the appellants Except appellant No.2 : Shri Jagdish Vats, Advocate. For the respondent : Mr. R.K. Sharma, Senior Addl. Advocate General with Mr. Rajinder Dogra, Additional Advocate General. 2. Cr. Appeal No.190 of 2000. State of Himachal Pradesh ….Appellant. Versus Munshi Ram and others ….Respondents. For the appellant : Mr. R.K. Sharma, Senior Addl. Advocate General with Mr. Rajinder Dogra, Additional Advocate General. For the respondents except respondent No.2 : Mr. Jagdish Vats, Advocate. Coram Hon’ble Mr. Justice R.B. Misra, J. Hon’ble Mr. Justice Surinder Singh, J. Whether approved for reporting1? Yes. ____________________________________________________ Per SURINDER SINGH, J. The respondents were acquitted for the offences punishable under Sections 302 and 201 read with Section Whether reporters of the Local papers are allowed to see the judgment? - 2 - 34 of the Indian Penal Code, against which the State has filed appeal challenging the acquittal, whereas the accused persons have filed a separate appeal against their conviction for offence punishable under Section 498A of the Indian Penal Code passed in Sessions Case No.49-K/VII-98, decided on 26th October, 1999, as such both these appeals are taken up together for decision. 2. Briefly stated, the prosecution case can be stated thus. In the year 1988 Sikandra Devi (deceased) was married to accused Munshi Ram. (ii) Accused Nikka Ram and Brahmi Devi are the parents of Munshi Ram, whereas accused Karnail Singh is his real brother. (iii) It is alleged that for about two years of their marriage the deceased and Munshi Ram both lived together happily, thereafter accused persons started maltreating her and insisted upon to seek divorce from Munshi Ram as she was infertile and not able to conceive a child. The torture was to such an extent that she was not provided any food and other necessities of life which became unbearable for her to live with accused persons. (iv) One month prior to her death, she is alleged to have complained about the beatings given by the accused persons. - 3 - (v) On 17th July, 1998, her brother PW3 Hans Raj and other relatives were informed that she had died on account of bursting of gas-cylinder. They reached the spot and found her dead body in the kitchen which was totally charred. (vi) Police was informed and the statement of PW3 Hans Raj was recorded which culminated into present FIR. Inquest papers Exts.PW1/C and 1/D were prepared in the presence of PW12 Des Raj, the then Pradhan of the Gram Panchayat and PW3, brother of the deceased Hans Raj. The photographs of the dead-body were also taken. Police took into possession gas-cylinder with its broken regulator, burnt material from the fire-place vide recovery memo Ext.PW5/B. (vii) Dead-body was sent for autopsy, which was performed by PW1 Dr. D.R. Riyal, PW2 Dr. D.P. Swami and one Dr. V.B. Bhardwaj. The report of post- mortem is Ext.PW1/E. (viii) Viscera were sent for the chemical examination. On its examination, no traces of alcohol or poison were detected. Police also sent the ash, charcoal and burnt pieces of wood for its forensic examination, but it did not contain any inflammable material, as per report Ext.PW19/G. - 4 - (ix) During investigation police also came to know that Shiv Kumar nephew of accused Munshi Ram was also present in the house alongwith his brother. Shiv Kumar and his father Chain Singh were produced before the Judicial Magistrate and their statements were recorded under Section 164 of the Code of Criminal Procedure, wherein they alleged that the deceased was given severe beatings during the night, thereafter she was hanged against the rafter of the kitchen and was set on fire, thus destroyed the evidence. Apart from cruelty, the accused persons were also booked for murder of the deceased. They were arrested. Later accused Nikka Ram and Brahmi Devi were granted bail, whereas accused Munshi Ram and Karnail Singh both remained in custody till the termination of the trial. 3. On completing the investigation, Challan was presented in the Court for the trial of the accused persons. Accused persons were accordingly charge- sheeted, tried and acquitted for the offences punishable under Sections 302 and 201 read with Section 34 of the Indian Penal Code, but convicted and sentenced under Section 498A of the Indian Penal Code to undergo rigorous imprisonment for a period of three years and to pay a fine of ` 5,000/- each with default clause. - 5 - 4. In appeal filed by the accused persons, the sentence imposed upon them was suspended vide order dated 26th November, 1999 passed by this Court. 5. We have heard learned Counsel for the parties and have carefully gone through the evidence on record. 6. Shri R.K. Sharma, learned Senior Additional Advocate General duly assisted by Shri Rajinder Dogra, learned Additional Advocate General, vehemently argued that although the alleged eye witness PW6 Shiv Kumar did not support the prosecution case and his father Chain was not examined, yet the case hinges upon the circumstantial evidence as far as the offence of murder is concerned. To bring home the said offence, the circumstances, according to him, are only two, i.e., late reporting the matter to the police about the death of deceased, and false representation of the accused that the deceased had caught fire on account of blasting of gas-cylinder. However, he supports the findings of guilt with respect to the cruelty by the accused. 7. Contra, Shri Jagdish Vats, learned Counsel for the accused persons stated at Bar that Nikka Ram convict- appellant has died, during the pendency of these appeals. Therefore, the appeal filed by him and the State appeal filed against Nikka Ram deceased stand - 6 - abated, in view of the provisions of Section 394 of the Code of Criminal Procedure. 8. The above fact is not disputed. Therefore, the appeals by and against Nikka Ram stand abated. 9. Shri Vats for the remaining accused forcefully argued that the circumstances stated above are neither conclusive in nature nor it connects the accused persons in any way for the offences alleged. Therefore, the acquittal under Sections 302 and 201 read with Section 34 of the Indian Penal Code passed by the learned trial Court is legally and factually correct. He further argued that the conviction and sentence on the accused for the offence of cruelty is quite wrong and without proper appreciation of evidence on record, which is contradictory in nature and not inspiring confidence, therefore, unsustainable. 10. We have given our thoughtful consideration to the contentions raised and have carefully reappraised the evidence on record. 11. On the scrutiny of evidence, we find that there is no direct or circumstantial evidence worth the name to connect the accused with the offence of murder and destroying the evidence as alleged. It stands not proved from the prosecution evidence whether Sikandra Devi died during the night as alleged. Whereas, the case set - 7 - up by the accused persons is that they were away in the fields in the morning of fateful day, busy in doing agricultural work and the deceased was in the house. On hearing the cries and the smoke emanating from their house they rushed to the spot and found that she had caught fire. On the way they also found PW10 Jaram Singh running towards their house. All of them tried to extinguish fire by throwing water. When they entered the kitchen, they also saw that the utensils were lying scattered and some cooked rice and vegetables were found scattered on the floor of the kitchen. A person was sent to the Pradhan and the parents of the deceased to inform them. They denied that the deceased was ever maltreated by them and her husband had absolutely no grievance for not conceiving a child by her. 12. To sustain the conviction on the basis of circumstantial evidence, law has been expounded in extenso by catena of decisions of the Apex Court. It is not necessary to recapitulate them merely to cover the ideal parade of familiar knowledge. However, we may profitably refer a consistent view taken in Sharad Birdhichand Sarda v. State of Maharashtra, AIR 1984 SC 1622 and Gokaraju Venkatanarasa Raju v. State of Andhra Pradesh, 1993(3) SCJ (SC) 265. - 8 - 13. The Supreme Court has laid down following principles to base conviction on the basis of circumstantial evidence: (i) The circumstances from which an inference of guilt is sought to be drawn must be cogently and firmly established; (ii) Those circumstances should be of a definite tendency unerringly pointing towards the guilt of the accused; and (iii) The circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else, and it should also be incapable of explanation on any other hypothesis than that of the guilt of the accused. Further, in cases depending largely upon circumstantial evidence there is always a danger that the conjecture or suspicion may take the place of legal proof and such suspicion, however, so strong cannot be allowed to take the place of proof. The Court has to be watchful and ensure that conjectures and suspicion do not take place of legal proof. The Court must satisfy itself that the various circumstances in the chain of evidence should be established clearly and that the completed chain must be such as to rule out a reasonable likelihood of the innocence of the accused. 14. Keeping in forefront the aforesaid ratio laid down in the aforesaid cases and the factual aspects of the case, we are of the opinion that the circumstances put-forth to draw the inference of guilt of the accused qua the offence of murder and destroying of the evidence - 9 - having been committed by the accused persons, is not made out. 15. Although, the statement of PW6 Shiv Kumar an alleged eye witness was recorded under Section 164 of the Code of Criminal Procedure and proved by PW14 Krishan Kumar, Judicial Magistrate in whose presence and dictation it was recorded, but such a statement cannot be used as a substantive evidence in coming to the conclusion that the witness had been either won over or having made such a statement. When examined in the Court even he denied having made such a statement. He was the only witness to show that the alleged offence was committed during the night. Whereas PW10 Jaram Singh, who is stated to have met accused persons while rushing towards their house on hearing the cries in the morning, did not support the prosecution case. However, he stated that though he visited the spot, slates of the roof of the kitchen had been broken from where he alongwith others threw water to put-off the fire and fire was extinguished. He also stated that some cooked-rice and vegetables were lying scattered in the kitchen. 16. PW11 Harbans though not supported the case of the prosecution, also made similar statement. In cross- examination conducted by the learned Public - 10 - Prosecutor he admitted that Raghubir Singh, brother of Munshi Ram accused raised alarm in the morning and he saw from his cowshed close to the house of the accused persons that about 10 persons had gathered on the spot and Raghubir Singh shouted that his sister-in- law had caught fire and there was a danger of bursting the gas-cylinder inside and no one should go to the kitchen. Thus the people started throwing water from outside and thereafter, the parents and the police were informed. They arrived on the spot in the evening and he did not visit the house of the deceased in the night. Said Raghubir Singh, with whom the allegations of illicit relations of the deceased are alleged, is absconding since then and is not traceable. 17. Further, the photographs as well as the recovery memo of the cylinder indicate that a damaged regulator was intact on the cylinder which was placed besides the fire place. The gas-stove was found upside down near the fire-place which was not connected with the cylinder. There was a crack in the regulator, indicated in the recovery memo Ext.PW4/A. Thus, the possibility of leakage of the gas from cylinder cannot be ruled out which might have caught fire from a burning fire place. The defence probablised the defence that deceased caught fire in the morning. Thus there was no - 11 - question of the incident having taken place previous night as alleged and trying to hush up the matter. 18. Thus, in the above circumstances, the prosecution cannot be said to have proved the aforesaid circumstances in accordance with law and are of inconclusive in nature and not sufficient to prove the charge of murder. 19. In so far as the destroying of the evidence is concerned, the commission of the murder by itself by the accused persons stands not proved against them. The dead body was in such a condition that the doctors were unable to find out the cause of death. Although, there is a statement of PW1 Dr. D.R. Riyal that the burn injuries on the dead-body were in the nature of post-mortem, but when cross-examined on this point the doctor frankly admitted that since there was no suit in the trachea, which is surest sign of anti- mortem death due to burns, therefore, he opined that these are post-mortem burns. Significantly, he admitted that he did not send the trachea and bronchi to the Chemical Examiner and that he did not conduct spectro-photometric test to determine whether the burn injuries were post-mortem. He also did not conduct the hysterical test to distinguish between anti and post-mortem burn injuries. Further, he - 12 - also did not conduct any pathological test. There was also no struggle marks visible on the body and no examination of the above organs was made by the Department of Anatomy. He admitted having not mentioned in the post-mortem report about the presence of suit in the trachea and bronchi. He further admitted having constituted a Board which included the forensic expert for better opinion in such highly decomposed stage of the body. 20. There is an evidence to conclude that the alleged incident had taken place in the morning of 17th July, 1998. The dead-body was taken from Nurpur to Zonal Hospital, Dharamshala for autopsy. On 18th July, 1998 it reached the said hospital. On 19th July, 1998 the post- mortem was conducted at 4.30 p.m. which caused decomposition because of rainy season. 21. PW2 Dr. D.P. Swamy is a forensic expert. He was also a member of the team who performed the post-mortem and proved postmortem report Ext.PW1/E. He stated that it was not necessary in this case to conduct the tests of spectro photometry, ultra violet chemical analysis with elledium chloride to determine the nature of injuries to know whether the injuries were anti-mortem or post- mortem as the body was highly decomposed. He further stated that these tests can only be done when the blood - 13 - is there and organs are intact. He also admitted that trachea and bronchi were not sent to Forensic Science Laboratory for further examination. 22. On the critical analysis of the aforesaid evidence, we find that it could be an accidental death because of the leakage of the gas-cylinder which caught fire and the deceased while working on the gas-stove also caught fire thus died due to the shock and fire engulfed her causing the post-mortem injuries. Therefore, in these circumstances when the prosecution could not establish the real cause of death, the post-mortem burn injuries appearing on the body cannot be used to convict the accused persons either for murder or destroying the evidence. Since the circumstances from which an inference of guilt is sought to be drawn stand not cogently and firmly established, as such, we affirm the acquittal of the accused persons under Sections 302 and 201 read with Section 34 of the Indian Penal Code and the State appeal is hereby dismissed. 23. Now coming to the conviction of the accused persons for the offence punishable under Section 498A read with Section 34 of the Indian Penal Code, we find that there is cogent and reliable evidence on record to prove this charge. Admittedly, the deceased was married to accused Munshi Ram in the year 1988 and - 14 - she could not conceive a child till her death, in the year1998. Her father had died before her marriage and after marriage her mother had also died. 24. PW3 Hans Raj, her brother, categorically stated that whenever she visited him in his village she used to complain that she was abused by the accused persons because she was not able to conceive and they threatened her either to leave the matrimonial house or seek divorce. He sent her back to the house of the accused persons and to have patience. But when again she visited him after about 6/7 months, complained of giving beatings by the accused persons. She also alleged that she was also accused of having illicit relations with Raghubir Singh, brother of accused Munshi Ram. PW3 also stated that the deceased told him that they did not provide her food and other requirements of life. Even this complaint was also made by her to her uncle PW4 Chuhar Ram to which he also lends corroboration. Even after the alleged incident Raghubir Singh is missing from the house. His statement is positive to the effect that the deceased did not find any change in the behaviour of the accused persons despite the fact that he (Hans Raj) tried to prevail upon them to improve their behaviour. A month prior to her death she visited her brother and again complained of giving beatings to - 15 - her. On 17th July, 1998 at about 8.30 a.m. he was informed by Des Raj (PW12) that she was dead because of bursting of the gas-cylinder. Hans Raj aforesaid was subjected to meticulous cross-examination, but he struck to the point that the deceased had been making regular complaints to him that she was being maltreated for not conceiving a child and also alleged illicit relations with Raghubir Singh. Though with respect to the illicit relations his statement Ext.PW3/A did not find mentioned, but qua torture meted out to her, is categorically stated by him. 25. Learned Counsel for the accused persons argued that he made belated statement to the police despite the fact that he was present on the spot when inquest papers Exts.PW1/C and 1/D were prepared by the police, but this argument is of no consequence. The reason being, on hearing the painful death of his sister and on seeing the dead body in a totally charred condition one cannot be said to have retained cool and calm. One can get puzzled in thought what to do or what not to do, especially when he had already lost his parents. Thus even on the next day he would not also be able to give the vivid account of previous incidents with respect to cruelty. PW4 Chuhar Ram stated that when all the relatives visited the spot they insisted upon - 16 - the cremation of dead-body in the court-yard of the accused persons might be in retaliation to what accused persons have done and situation had become tense. Thus PW12 Des Raj, Pradhan of the Gram Panchayat on seeing this unusual plea taken by the relations of the deceased due to anger informed police. Even PW5 Mango Ram, PW7 Vidya Devi, niece of the deceased and PW8 Salochna Devi stated without mincing any word about the aforesaid allegations/complaints having been made by the deceased even to them when she was alone. Even PW7 Vidya Devi stated that the deceased had visited her about ten times and every time she used to repeat same thing with respect to cruelty which she faced and also stated that she was alleged to have been carrying on with Raghubir Singh. However, she admittedly made this statement for the first time in the Court. Further PW8 Salochna also stated that the deceased used to make complaints to her about the beatings and harassment being caused to her for not bearing the child and her husband used to tell that he would marry again. 26. The above witnesses have made mention with respect to the complaints having been made to them on different times but did not report the matter to the police. Only by not making report in the above - 17 - circumstances is not enough that their testimonies should be out rightly disbelieved. 27. In the instant case, the statements of the close relations to whom the deceased had certified having categorically stated about the non-conceiving a child and she was alleged to be infertile, which caused to the accused persons to pass sarcastic remarks. The allegations of being infertile and on account of that the continuous threats, given by accused persons to seek divorce by the deceased wife, are cruelty within the mischief of Section 498-A of the Indian Penal Code. 28. Thus, the upshot of the entire discussion is that the learned trial Court has rightly concluded that the offence under Section 498-A read with Section 34 of the Indian Penal Code was made out against the accused persons and we do not find any fault in the conviction of the accused persons for the said offence, as such it is upheld. 29. Regarding sentence, learned Counsel for the accused persons submitted that the incident in question had taken place in the year 1998. Munshi Ram, husband of the deceased and her brother-in-law Karnail Singh both were under-trial prisoners till the suspension of sentence by this Court. They remained in custody for about 17 months. Accused Brahmi Devi is of 75 years of - 18 - age and she also remained in judicial custody for two months. Therefore, the ends of justice would be met in case the sentence already undergone is awarded. 30. We have considered this argument. The incident took place more than a decade ago and the convicts have also undergone a substantial part of the sentence awarded by the learned trial Court. Thus, keeping in view their ages and torture of trial, the ends of justice would be met, while maintaining the fine; the sentence of imprisonment is modified to the extent already undergone by the convicts/accused persons. The fine amount, if not already deposited, shall be deposited by the accused persons within six weeks from today. Ordered accordingly. 31. Consequently, the State appeal is dismissed and appeal filed by the accused persons, namely Munshi Ram, Brahmi Devi and Karnail Singh is partly allowed only with modification in sentence to the above extent. Both these appeal stand disposed of. (R.B. Misra), Judge December 09, 2010 (Surinder Singh), (rc) Judge.