HIGH COURT OF HIMACHAL PRADESH AT SHIMLA Cr.A. No. : 329 of 1995 Reserved on: 2.4.2009 Decided on: 8.4.2009 State of Himachal Pradesh ……… Appellant. Versus Sukh Dei ………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. R.M. Bisht & Mr.Rajesh Mandhotra, Deputy Advocate Generals. For the respondent: Ms.Anita Dogra, vice Mr.Ramakant Sharma, Advocate. Per V.K. Ahuja, J.: This is an appeal filed by the State of Himachal Pradesh against the judgment of the court of learned Sessions Judge, Sirmour at Nahan, dated 1.7.1994, vide which the respondents were acquitted of the charge framed against them under Sections 498-A, 304-B and 306 read with Section 34 IPC. The prosecution story in brief is that dead body of one married woman, namely, Padma was recovered from a water tank at Ranital, Nahan. A police officer proceeded to the spot, recorded the statement of PW-2 Dhan Bahadur, father of the deceased, who alleged that he married his daughter in February 1992 with Parveeen Kumar, respondent (now dead), in accordance with custom. It was alleged that his daughter Padma, aged about 18/19 years, had come to ___________________________________________ Whether reporters of local newspapers may be allowed to see the judgment? Yes. his house in the month of Sawan (July/August) alongwith her husband Parveen Kumar and told him that her husband Parveen and mother-in-law Sukh Dei, respondent, used to torture her for not bringing anything in the marriage. It was further alleged that for this reason, both the respondents used to give beatings to his daughter and he advised his daughter and sent her with her husband on the next day to Nahan. On 1.10.1992, during night time, he learnt that the dead body of his daughter Padma was lying in Ranital Tank. He could not go to the spot during night time but reached the hospital alongwith other persons in the morning. He gave a statement that the suicide may have been committed by his daughter due to maltreatment by both the respondents. On this report, a case was registered and after investigation, the challan was filed before the court of the learned Chief Judicial Magistrate, who committed the case to the learned Sessions Judge, Sirmour, who tried the respondents, as detailed above, leading to their acquittal. We have heard the learned counsel for the parties and have gone through the record of the case. The submissions made by the learned Deputy Advocate General for the appellant were that the prosecution case consisted of the statements of four witnesses including the parents of the deceased, who have stated about the maltreatment and demand of dowry. It was also submitted that the learned trial Court had taken minor contradictions as major contradictions in the testimonies of these witnesses and had accordingly acquitted the respondents wrongly, which findings can be termed as perverse calling for an interference by this Court. On the other hand, the learned counsel for the respondent had supported the impugned judgment for the reasons recorded therein. We will make a reference to the testimony of the material witnesses. The first material witness was PW-2 Dhan Bahadur, father of the deceased, who stated that last to last year, in the month of Sawan, once or twice, the deceased visited his house after the marriage. He found her sad and on enquiry, she told that her husband and her husband’s mother tortured her for not bringing sufficient dowry. He stated that when the husband of the deceased came to his house on the next day, he touched his feet and requested him not to harass his daughter for bringing insufficient dowry since he was a poor person. He further stated that this request was made by him to the accused during rainy season. In October, 1992, he learnt that his daughter has been killed and thrown into the water tank. He further stated that his daughter had also complained to his wife and three other persons, namely, Prem Singh, Nadar Singh and Ram Singh, about the ill-treatment at the hands of the accused for not bringing sufficient dowry. He proved his statement Ext.PC made to the police after the death of the deceased. In cross examination, PW-2 Dhan Bahadur admitted that his daughter visited him 2/3 times after marriage. He also admitted that whenever his daughter came, she was accompanied by her husband who took her back to his place after staying with them for 2-3 days. He admitted that the deceased never wrote any letter to him. The first complaint, according to him, was made three months after the marriage by his daughter about the harassment for not bringing sufficient dowry. He admitted the suggestion that no report was lodged with the Panchayat or with the police in regard to the demand of dowry or harassment. He never came to Nahan to request his daughter’s father-in-law not to harass her, though he stated that his wife had visited Nahan. He stated that the last visit of the deceased was 10-15 days prior to her death and then also her husband had visited him and both of them went back together. He was confronted with police statement where there was no reference to the visit of his daughter to Nandar Sigh’s house or meeting or the complaint made to him and no reference was made in Ext.PC, the statement made by him to the police. PW-5 Kanta Devi is the mother of the deceased, who stated that whenever her daughter came to their house, she was sad and on enquiry she told that the respondents taunted her that her parents had not given her anything in dowry. She persuaded respondent Parveen at her place not to harass her daughter. She stated about the last visit of the deceased in the month of Sawan when she complained that her in-laws and husband harassed her for not bringing sufficient dowry. She stated that she visited her in-laws’ house and touched the feet of the father of the accused Parveen and pleaded with them not to harass her daughter. Her cross examination does not show that when the first complaint was made to her and after how many days of marriage. She stated in general and stated about the last visit of her deceased daughter in the month of Sawan. She also admitted that the deceased visited them 2/3 times and during all such visits, she was accompanied by accused Parveen. She also admitted that every time, her deceased daughter came to their house with the accused Parveen. They stayed at their place for 2-3 days. In cross examination, she came up with the plea that the first complaint was made to her by the deceased after one month of the marriage, though this was not specifically stated by her husband, who appeared in the witness box as PW- 2. She was confronted with her police statement, where she had not stated that the accused had harassed her daughter for not bringing dowry. She was confronted with her police statement wherein it was not so recorded that she had gone to the house of her daughter’s in-laws and touched their feet not to harass their daughter. She stated that she had told these facts to her brothers Gita Ram and Hem Singh about the harassment, but these persons were not examined as witnesses. PW-3 Ram Singh Pradhan of the Panchayat has stated that the deceased Padma met him 10-15 or 20 days after her marriage and told him that her husband and mother-in-law physically tortured her on account of her father’s failure to give dowry to their expectations. He further stated that before that, the parents of deceased Padma had complained to him in this regard. His statement shows that the first complaint was made to him by the deceased 10- 15 or 20 days after the marriage, but this was not so specifically stated by PW-2 Dhan Bahadur. However, PW-5 Kanta Devi had stated, in general, about the complaint, but had not stated that the first complaint was made by the deceased 10-15 or 20 days after the marriage. PW-3 Ram Singh further stated that Padma met him at her maternal uncle Gita Ram’s house at Bagil, where he had gone, but the said maternal uncle Gita Ram had not been examined nor the parents of the deceased, namely, PW-2 Dhan Bahadur and PW-5 Kanta Devi, have stated that any such complaint was made by the deceased to this witness, when she met him at her maternal uncle’s house. He admitted that he has not stated in his statement to the police that the deceased had met him at Bagil 10-15 of 20 days after her marriage and complained against the accused. He did not ask the father of the deceased to lodge the complaint with the police or Panchayat regarding the ill-treatment of his daughter by her in-laws. PW-4 Prem Singh is another witness examined by the prosecution. He has stated that the deceased had met him while going to her father’s place. She told him that her husband taunted her for not bringing sufficient dowry and she did not say anything else. He could not tell the exact date of the month of Sawan when Padma met him. He admitted that accused Parveen was not accompanying her when she made the aforesaid statement to him, though it has come in the statements of PW-2 Dhan Bahadur and PW-5 Kanta Devi that Parveen, husband of the deceased, used to visit their house and stayed there for 2-3 days. He stated that he never saw the deceased visiting her father’s place thereafter. He stated that he had told Dhan Bahadur about the complaint made by his daughter, but the said Dhan Bahadur has never stated so in his statement, when he appeared in the witness box as PW-2. From the above discussion of the evidence, it is clear that the evidence led through the statements of these witnesses is not consistent as to when the first complaint was made by the deceased either to her father or mother and the witnesses have deposed differently in this regard. The statements of PW-3 Ram Singh and PW-4 Prem Singh are also of general nature and do no refer to the period when the complaint qua demand of any particular item was made. Thus, these statements do not corroborate the statements of the parents of the deceased. It is also in evidence of PW-2 Dhan Bahadur, father of the deceased, that they are Kohli by Caste and there is no custom in their Caste in regard to payment of dowry. Therefore, the learned trial Court had rightly observed that it looks improbable that such a demand may have been made from the parents of the deceased. He also admitted that he is a poor person and respondent Parveen was also working as a Cleaner and, therefore, it can be assumed that he must be aware that the parents of the deceased are poor and are not able to give any dowry. Apart from the above, regarding the cause of death, the statement of PW-1 Dr.G.Narang, Medical Officer, who conducted the post mortem examination on the dead body of the deceased, shows that there was no injury or fracture over any part of the body and no marks of any ligature were found on the dead body. The cause of death given by him was due to dry drowning. The Investigating Officer PW-11 ASI Chander Singh, who partly investigated the case, had prepared the site plan Ext.PL and he has not stated in his statement about the length, breadth or the depth of the tank, though in the site plan proved by him as Ext.PL, he has mentioned the depth as 9’-7”, while the depth of the water in the tank was 7’-6” and the dead body was found at a distance of 4’ from the side wall of the tank. We may clarify that it was not a small tanky normally used by the persons in their houses for storage of the water but it is a tank having walls and sufficient depth, in which the dead body was found and the photograph Ext.D/4 also shows that the dead body was at some distance from the wall. These facts have been mentioned by us to show that the learned trial Court had rightly observed that the possibility of accidental fall cannot be ruled out. There is no witness who may have seen the deceased near the water tank prior to the occurrence or sitting on the side of the tank or how she fell in it. No presumption can be drawn that she was thrown into the water tank by either of the accused since there is no evidence to this effect. Once the court cannot give the findings that it was a case of suicide, the respondent cannot be held liable under Section 306 of the IPC. The evidence led by the prosecution is not sufficient to prove the charge under Sections 498-A/304-B read with Section 34 of the IPC since the evidence led was neither cogent nor reliable to prove the guilt of the respondent beyond any reasonable doubt. We find no reasons to disagree with the findings recorded by the learned trial Court that the prosecution had failed to prove their case beyond any reasonable doubt. In view of the above discussion, we find no merit in the appeal filed by the State of H.P., which is dismissed accordingly. The bail bonds furnished by the respondent shall stand discharged. (Deepak Gupta), Judge. April 8, 2009. (V.K. Ahuja), (TILAK) Judge