IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA Cr. Appeal No. 147/2000 Date of decision: 3.12. 2010 State of H.P. …..Appellant Versus Dharam Chand and another ……Respondents Coram: The Hon’ble Mr. Justice R.B. Misra, J. The Hon’ble Mr. Justice Surinder Singh, J. Whether approved for reporting ?1 . For the Appellant: Mr. R.K. Sharma, Sr. Additional Advocate General, with Mr. Rajinider Dogra, Addl. Advocate General. For the respondents : Mr. Ashwani K. Sharma, Advocate. Surinder Singh, J. (Oral) Respondents were charge-sheeted, tried and acquitted by the learned trial Court in Sessions Trial No. 23 of 1997 decided on 6.11.1999 under Sections 498-A and 306 Indian Penal Code, as such the State made a challenge to their acquittal in the instant appeal. 2. The facts in brief are as follows; 1 Whether the reporters of Local Papers may be allowed to see the judgment ?. yes - 2 - (i) Respondent Dharam Chand was married to Amari Devi (deceased) about four years prior to her death and Beasa Devi is her mother-in-law. From this wed- lock, she gave birth to a male child. (ii) It is alleged that respondents maltreated and tortured Amari Devi and on 30.6.1995 her husband had a tiff with her due to which, she left her matrimonial home along with her child aged about 1 ½ years, thereafter she did not return to her matrimonial home. (iii) On 5.7.1995, Dharam Chand lodged a report Ext. PW14/A to the effect that he and his wife had been living separately from his parents. On 30.6.1995 he asked his wife to wash his clothes, but she retorted and did not adhere to his request rather complained of pain in her fingers. Thereafter Dharam Chand washed his clothes himself and deceased nagged him alleging that he had consumed whole soap in washing the clothes which resulted into some altercation between them. She called him bastered. Getting agitated, Dharam Chand left his house to buy some house-hold articles. On his return, he did - 3 - not find his wife and his son in the house. Later, he came to know from Vidya Devi that she was seen in the upper side on the path. He also stated in his report to the police that even at earlier occasions, deceased had also been leaving for her parental home on trivial matters. Thus he thought that she might have gone there. He searched her at her parental home and other places, but was not traceable. 3. On 6.7.1995 an unidentifiable and decomposed body of a female was recovered from river Beasa at Kandhapatan. It is alleged that respondents used to harass Amari Devi for not bringing sufficient dowry and passed taunts. She was also beaten up by them, thus on getting fed-up, she committed suicide by jumping into river along with her son. 4. Dead-body of the minor son was not recovered whereas dead body of a female is alleged to have identified by respondent Dharamchand only from the colour of the bangles. Her face was totally damaged and body was putrefied. The prosecution, on investigation concluded that the - 4 - respondents have committed the offences aforesaid. On completing the challan, it was presented in the court for their trial. 5. Respondents were charge-sheeted. They abjured their guilt and claimed trial. 6. To prove its case, prosecution examined its witnesses and the respondents were also examined under Section 313 of the Code of Criminal Procedure. They denied the allegations against them. They took up the stand that respondent Dharam Chand was living separately from his mother along with his family and they were innocent. Dharam Chand stated that although there was a tiff with his wife but when she did not return, he lodged the report with the police. 7. At the end of the trial, learned trial Court did not find reliable evidence against them to conclude the charges framed against them and also noticed that the police did not comply with the provisions of Section 174 of the Code of Criminal Procedure which mandates the police that when a case involves suicide - 5 - of a women, within seven years of her marriage or the death having been taken place in the circumstances raising reasonable suspicion about the commission of an offence, then the investigation is to be made by a Magistrate into the cause of death as per procedure prescribed in Section 176 of the Code of Criminal Procedure. Since the police failed to report to the authorized Magistrate and for non-explanation on their part for this omission, the dead-body lacked identification and also the cause of death in the given circumstances. 8. Shri R.K. Sharma, Senior Additional Advocate General vehemently argued that the learned trial Court did not appreciate the evidence in the right perspective and further that the evidence of torture, as alleged in the prosecution case stands established even by the report lodged by accused Dharam Chand regarding the missing of her wife which fact was completely ignored by the learned trial Court. If this is taken into consideration, there are grounds to convert the acquittal into conviction. - 6 - 9. The above arguments have been strenuously opposed by the Sh. Ashwani K. Sharma, Advocate, learned counsel for the respondents on the ground that report lodged to the police with respect to the missing and also clearly mentioning the true facts cannot be used against him to conclude the offence charged against him. He further ventilated that the respondents were living separately and there was no cause to maltreat her by the respondents in any way. It is also argued that the deceased had been leaving her matrimonial home even earlier on trivial matters, to her parental home and there is no evidence with respect to the cruelty or abetting the offence of suicide by the respondents. In nutshell, he supported the impugned judgment of acquittal passed by the learned trial Court. 10. We have examined the matter in the light of the arguments advanced by the learned counsel for the parties. 11. We agree with the findings of the learned trial Court that there is no sufficient and reliable evidence to - 7 - connect the respondents with the offences charged. 12. Admittedly on 30.6.1995, Amari Devi left her matrimonial home along with minor son and did not return back. She was not traceable by her husband despite best efforts made to locate her, thus he lodged the missing report on 5.7.1995, in Police Station. Police only sent its messages to the various police Stations and Police Posts but did not try to contact her parents. However, it was clearly mentioned by Dharam Chand in the report that he had also searched her in the house of her parents and at various other places but she was not traceable. 13. Santu father of the deceased was examined in the Court as PW1. He stated that his daughter used to complain that the respondents used to beat her. He had also contacted them and they assured not to torture her in future. He also stated that Chet Ram Pradhan was told about the maltreatment of his daughter. He did not state as to why respondents had been torturing or maltreating her. He again refurbished his version that she was being - 8 - tortured for bringing insufficient dowry but without mentioning what particular things were required by the respondents in dowry. It was specifically put to him that respondents have been living separately to which he expressed his ignorance. 14. Chet Ram Pradhan was neither listed as witness nor examined in the Court to substantiate his version. 15. PW2 Bhuri Singh the brother of the deceased also made the similar statement that after marriage deceased visited them 3-4 times and complained about the insufficient dowry having been given in marriage. He also stated that respondent Dharam Chand, after taking liquor had been giving beatings to his sister and stated that when the son of the deceased was aged about one year, said respondent asked Amari Devi, if her parents would like to celebrate his birth day, they should spend money. When Amari Devi asked to her parents, they denied it and told her that they would spend money when he will be of two years, thereafter she went back and committed suicide after about 22 - 9 - days. He also stated that the matter was brought to the notice of Chatter Singh Pradhan (PW7) of Khalanu Panchayat. They took him to the house of the respondents to reconcile the matter and to live peacefully but this fact is totally denied by Chatter Singh aforesaid, rather he specifically stated that he never accompanied the father of the deceased to the house of the respondents for any counseling or for any kind of compromise. His house is situated at a distance of 200 feet away from the house of the respondents. He testified that he never heard any quarrel between the deceased and the respondents and also stated that Dharam Chand had been living separately with his wife and child from his mother respondent Beasa Devi. The allegations with respect to dowry are categorically denied by him. 16. PW3 is Chet Ram. He also could not say as to what was the precise demand of dowry made by the respondents. The brothers of the deceased were carpenters and Dharam Chand had also been doing the carpentry work with them. During this - 10 - time, none of the witnesses produced before the learned trial Court stated that there was any sort of bickering inter se Dharam Chand and his wife. Her father PW1 specifically admitted that Dharam Chand respondent used to work with his sons as carpenter. After his marriage, respondent used to live with deceased with love and affection. This fact was further admitted by Bhuri Singh and Chet Ram aforesaid. If this fact is seen with respect to the allegations now made regarding the harassment and demand of dowry, it does not match with the facts which have emerged from evidence. Further, the allegations that she was given beatings within two years of her marriage by the respondent, for inadequacy of dowry, more specifically when she had given birth to a male child are quite unconvincing. 17. Also there are material contradictions in the statement of the father and his sons. Her father stated that the deceased had visited four times in the parental home whereas her son testified that she had visited about fifteen occasions after the marriage and - 11 - Chet Ram PW3 specifically stated that he had been visiting matrimonial home of the deceased at least once in a month. 18. Even PW1 stated having not informed about her missing and her death. But the facts on record reveal that Dharam Chand had already made the report to the police wherein he stated that he also made her search in her parental home. Although PW1 testified that he came to know about her missing but the source is not disclosed by him. 19. In so far as the recovery of the dead body from the River Beasa is concerned, it was a putrefied and unidentifiable body. Bhuri Singh denied having identified the dead body. It was also not possible to identify a totally putrefied body from the bangles which are commonly worn by the ladies in that area. It is also a fact that after the said incident, neither Amari Devi nor her son were seen alive. 20. We also find that statements of the above witnesses, with respect to the cruelty are contradictory and are not consistent and lacks corroboration. The - 12 - allegation of a tiff in Ext. PW14/A mentioned by Dharam Chand in the report with respect to her missing cannot be taken as falling within the mischief of “cruelty” contained in Section 498-A of the Indian Penal Code. Rather it appears to be natural. Had there been some malafide in lodging the report, respondent Dharam Chand could have conveniently ignored about mentioning of this incident of slapping her. 21. Now coming to the offence punishable under Section 306 Indian Penal Code, prosecution is obliged to prove the abetment in terms of Section 107 Indian Penal Code. No doubt section 113-A of the Indian Evidence Act raises a presumption if a women commits suicide within 7 years of her marriage and if it is proved that her husband or relative of her husband had subjected her to cruelty, the Court may draw presumption having regard to all the other circumstances of the case that such suicide has been abetted by the husband or such relative of the husband subjected her to cruelty. Since, we did not find any cogent and reliable evidence with respect - 13 - to cruelty on scanning the aforesaid evidence and the demand of dowry, as projected by the prosecution witnesses, the offence under Section 306 Indian Penal Code is also not made out. 22. We also find that the learned trial Court rightly came to the conclusion that dead body which was found in a whirlpool in the river was putrefied and unidentifiable. The statement of the doctor, who conducted the postmortem reveals that it was putrefied to such an extent that her nails or part of hair on head could easily be pulled out. Even doctor Mahesh Kapoor (PW8) admitted that the dead body could not have been identified from the face. Otherwise also, the dead body was quite naked and rotten. In his statement under Section 313 of the Code of Criminal Procedure Dharam Chand stated that the police recovered two dead bodies from the river. The doctor also admitted that they even did not ascertain the age of the dead body rather the age was recorded as informed by the police. 23. PW6 Durga Dutt who was present at the time of preparing the inquest report - 14 - also admitted that the dead body was totally decomposed, therefore, the identification of the dead body to be that of deceased Amari Devi is also doubtful. Further the Police also did not make a report to the Executive Magistrate as per provision of Section 174 of the Code of Criminal procedure with regard to the dead body found in the river. The inquiry stipulated under Section 176 of the Code by him could have been helpful in determining the truth but even police did not offer any explanation for not complying with the said provision. 24. In totality of circumstances, on having scrutinized the evidence on record dispassionately, we agree with the findings of acquittal passed by the learned trial Court and in our opinion, it does not warrant any interference. Accordingly we order for the dismissal of State appeal. 25. Respondents are discharged of their bail bonds entered upon by them at any stage during the proceedings in this case. Send down the records. (R.B Misra), Judge December 3, 2010 (Surinder Singh), (cm) Judge.