IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA Cr. A Nos.54 of 1994 and 193 of 1995 Decided on: April, 10, 2008. Cr. A. No.54 of 1994 Gurmesh Chand …Appellant Versus State of H.P. …Respondent Cr.A. No.193 of 1995 State of H.P …Appellant Versus Gurmesh Chand and two others …Respondents Coram The Hon’ble Mr. Justice Surjit Singh, Judge. The Hon’ble Mr. Justice Surinder Singh, Judge. Whether approved for reporting?1 For the Appellant(s) : Mr. Ramakant Sharma, Advocate in appeal No.54 of 1994 and Mr. Rajender Dogra, Addl. A.G. in appeal No.193 of 1995 For the Respondent(s): Mr. Rajender Dogra, Addl. A.G. in appeal No.54 of 1994 and Mr. Ashok Chaudhary, Advocate, vice counsel, in appeal No.193 of 1995. Surjit Singh, Judge (oral) Two appeals, the numbers and particulars whereof are given in the title of this judgment, arise out of the same judgment dated 5.5.1994 of the Sessions Court and, therefore, they are being disposed of together by common judgment. 2. Appeal No.54 of 1994 has been filed by Gurmesh Chand, who has been convicted of an offence, under Section 498-A, IPC and sentenced to undergo rigorous imprisonment for two years Whether reporters of the local papers may be allowed to see the judgment? …2… and pay a fine of Rs.4000/-; in default of payment of fine to undergo rigorous imprisonment for a further period of six months. Appeal No.193 of 1995 has been filed by the State challenging the acquittal of said Gurmesh Chand, appellant in Appeal No.54 of 1994, in respect of offence under Section 306, IPC, and also the acquittal of respondents Malhu Ram and Gyatri Devi, respondents No.2 and 3 in Appeal No.193 of 1994, for offences, under Sections 306 and 498-A, IPC. 3. First, we may notice the facts which led to the trial of Gurmesh Chand, appellant in Appeal No.54 of 1994 and Malhu Ram and Gyatri Devi, respondents No.2 and 3 in Appeal No.193 of 1995. Gurmesh Chand, Malhu Ram and Gyatri Devi shall, hereinafter, be called as accused so that there is no confusion in making reference to them as appellant or respondents. 4. Deceased Kamla Devi, a sister of PW-1 Yog Raj, was married to accused Gurmesh Chand, in the year 1983. About two years after the marriage, the deceased started complaining to her brother PW-1 Yog Raj, mother PW-7 Shankri Devi and Mama PW-3 Santa Singh, that the accused had started ill-treating her and also gave her beatings. Thereafter the accused started throwing the deceased out of the matrimonial home every now and then. She would go to her parents who used to call Panchayat meetings and with the intervention of the Panchayat, accused Gurmesh Chand would bring the deceased back to the matrimonial home. Once the deceased had filed a petition, under Section 125, Cr. P.C., seeking maintenance, against accused Gurmesh Chand as he did not keep her at his place of posting nor did he provide any money to her to meet day-to-day expenses. Four-five months after the compromise, …3… which took place in January, 1990, the deceased was again turned out of the matrimonial home. A meeting of the Panchayats of the villages of the accused and the parents of the deceased was held. Proceedings of the meeting (Ext. PF) were reduced into writing. Initially, accused Gurmesh Chand was reluctant to take the deceased to his place of posting, but when the proceedings were still being recorded, he agreed to take her to his place of posting, twenty days later, and in the meanwhile, she was to be kept her at his parents’ place. 5. On 10th April, 1992, the deceased was found vomitting by accused Gyatri Devi when her husband accused Malhu Ram and son Gurmesh Chand accused, were not at home. She enquired from the deceased as to what had happened. The latter told that she was not feeling well, upon which accused Gyatri Devi served her fresh lemon water. A little later accused Malhu Ram returned from the fields with a bundle of grass and on coming to know that the deceased was vomitting, he took her to a private doctor. The private doctor advised that she be taken to a Government hospital because to the doctor deceased told that she had consumed aluminum phosphide. On way to the hospital, Kamla Devi died. 6. On coming to know about the death of his sister, PW-1 Yog Raj, her brother, lodged report with the police by making statement Ext. PA, under Section 154 Cr. P.C. Case was formally registered on the basis of the said statement at Police station, Amb, vide FIR Ext. PR. Postmortem of the dead body of Kamla Devi was conducted. Viscera was sent to Chemical Examiner, who vide Ext. PT reported that aluminum phosphide had been found in the viscera. …4… 7. All the three accused were charged with offences, under sections 306 and 498-A IPC by the trial Court. They pleaded not guilty. Prosecution examined a number of witnesses to bring the charge home to the accused. To substantiate its allegations of cruelty and abetment to commission of suicide by the deceased, prosecution examined PW-1 Yog Raj, the brother, PW-3 Santa Singh, the Mama, PW-7 Shankri Devi, the mother of the deceased and PW-5 Inder Singh, the Vice President of Gram Panchayat, Kuthera, in the area of which the village of the parents of the deceased falls. 8. None of the aforesaid witnesses testified that the deceased was ever beaten up by any of the three accused, in their presence. PW-1 Yog Raj, the brother, PW-7 Shankri Devi, the mother of the deceased even did not say that they ever saw any injury on the person of the deceased as a result of the alleged beatings at the hands of the accused. Only PW-5 Inder Singh, Vice President, Gram Panchayat, Kuthera, stated that he had seen injuries on the person of the deceased once or twice. The statement of PW-5 Inder Singh about his having seen the injuries and also the allegation that the deceased used to complain that the accused gave her beatings are improvements over the statement Ext.PW5/A, which the witness made to the police and with which he was duly confronted. These facts do not find mention in the said statement. 9. From an over all reading of the testimony of the above named four witnesses, it is clear that the deceased used to suspect that accused Gurmesh Chand had been having illicit relations with a lady named Kanta. At the same time, it is admitted by PW-1 Yog Raj that said Kanta was a god-sister of accused Gurmesh Chand. The witnesses also stated that Gurmesh Chand accused was …5… interested in marrying said Kanta and his parents also encouraged him in this behalf. At the same time, it has been admitted by PW-7 Shankri Devi as also PW-3 Santa Singh that said Kanta had been married to another man two-three years prior to the commission of suicide by the deceased. Therefore, the story, which was introduced by the prosecution for the first time, during the course of trial, that the cause of harassment of the deceased was illicit relations of accused Gurmesh Chand with a nurse, named Kanta, or that he wanted to marry said Kanta cannot be believed. 10. Another story was sought to be introduced during the course of trial. Per testimony of PW-7 Shankri Devi, the mother of the deceased, the deceased used to be harassed on account of insufficiency of dowry. No such allegation was made either in the earliest version given to the police, vide statement Ext. PA by PW-1 Yog Raj nor did any other witness, including PW-1 Yog Raj, make this kind of allegation. 11. From an overall reading of the testimony of the brother, the mother and the Mama of the deceased, it appears that the deceased did not want to stay at the native place of the accused, but wanted to live with accused Gurmesh Chand at the place of his posting. Some of the witnesses stated that accused Gurmesh Chand never took the deceased to his place of posting, but the mother of the deceased very categorically admitted that the deceased remained with Gurmesh Chand at the places of his posting called Chaplah and Sari for six years (four years at Chaplah and two years at Sari). 12. Prosecution relies upon a letter Ext. PG alleged to have been written by accused Gurmesh Chand to PW-3 Santa Singh, the Mama of the deceased. A reading of this letter shows that the …6… deceased used to leave the place of her in-laws without informing either her husband or parents-in-law and that was the reason of acrimony between the deceased and accused Gurmesh Chand. 13. Prosecution also tried to link accused Gurmesh Chand with the offence, under Section 306 IPC, by means of a writing Ext. PE, which he is alleged to have written on 13.4.1992, in the presence of some respectables. The writing is addressed to the Station House Officer. As per this writing, accused Gurmesh Chand stated that Kamla Kumari’s death has taken place because of his mistake. The writing cannot be used as confession for a number of reasons. Firstly, there is no mention in the writing what mistake was committed by Gurmesh Chand and why did he think himself responsible for the death of Kamla Kumari. Secondly, this writing is dated 13.4.1992, the date on which accused Gurmesh Chand had been arrested by the police. The accused has stated, in his examination, under Section 313 Cr. P.C., that he had been made to write Ext. PE at the Police Station by PW-3 Santa Singh and the police people. Investigating Officer of the case PW-17 Rulia Ram stated that writing Ext. PE was produced to him by PW-3 Santa Singh, vide memo. Ext. PH, but in memo. Ext. PH there is no mention of this document. As per memo. Ext. PH, only two documents were taken into possession and the same are Exts. PG and PF. Ext. PG is a letter which Gurmesh Chand allegedly wrote to PW-3 Santa Singh in the year 1989 and Ext. PF is the record of the proceedings of the Panchayat held on 26.8.1991. 14. From the above discussed evidence, it appears that the deceased had committed suicide not on account of the alleged beatings by the accused, but because of the fact that she did not …7… want to live at her in-laws’ place but with husband accused Gurmesh Chand at the place of his posting. The evidence on record shows that accused Gurmesh Chand had been keeping the deceased at his place of posting but not continuously. 15. As a result of above discussion and conclusions, we hold that accused Gurmesh Chand is not proved to be guilty of the offence of cruelty, punishable under Section 498-A IPC, of which offence he has been convicted and sentenced by the trial Court. Therefore, the appeal filed by him against his conviction for the offence, under Section 498- A IPC, i.e. Appeal No.54 of 1994 is accepted and the judgment of the trial Court to the extent it convicts and sentences him for the offence, under Section 498-A, IPC is set aside. The appeal filed by the State (Appeal No.193 of 1995) is dismissed. Both the appeals are disposed of. ( Surjit Singh ), J. April, 10, 2008, (ss) ( Surinder Singh ), J.