IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 72 of 2005. Date of decision: 13.12.2011. State of H.P. ….. Appellant. Vs. Biasan Devi w/o Sh. Jaisi Ram, Caste Kabirpanthi, r/o Bagarti Tappa Jangal Ropa, Police Station and Distt. Hamirpur, HP …. Respondent. Cr. Appeal u/s 378 of the Code of Criminal Procedure Coram The Hon’ble Mr. Justice R.B. Misra, Judge. The Hon’ble Mr. Justice Sanjay Karol, Judge. Whether approved for reporting?1 No For the appellant : Mr. Rajinder Dogra, Addl. A. G. For the respondent : Ms. Divya Sood, Advocate. Justice Sanjay Karol J. (Oral. For an offence, which is alleged to have been committed on 18.12.1997, accused was put to trial. In terms of judgment dated 22.9.2004 passed by the Presiding Officer, Fast Track Court, Hamirpur, in Sessions Trial No. 6 of 2001/19 of 2004 titled as State of H.P. vs. Biasan Devi, accused stands acquitted of the charged offence. 2. It is the case of the prosecution that Smt. Neelam Kumari (deceased) d/o Sh. Amar Singh (PW-1) was married to Sh. Kashmir Singh (PW-6), who used to reside at Amritsar Whether the reporters of the local papers may be allowed to see the Judgment? 2 (Punjab). Marriage took place sometime in the year 1993. Smt. Neelam Kumari used to reside with her mother-in-law, i.e. accused Biasan Devi in the village. Accused used to constantly taunt and harass Smt. Neelam Kumari for having brought insufficient dowry, as a result of which, on 17.12.1997 she consumed poison. PW-1 learnt about the same and visited the hospital where Smt. Neelam Kumari was admitted for medical treatment. Ultimately she died. SI Taheer Khan (PW-13) received telephonic information from the hospital on the basis of which he prepared rapat roznamcha (Ext.PW-12/A) and commenced investigation. In the hospital, PW-13 recorded statement of PW-1 (Ext.PW-1/A) on the basis of which F.I.R. No. 240/1997 (Ext.PW-10/A) dated 18.12.1997 under Sections 498- A/306 IPC was registered with Police Station, Hamirpur. Inquest report (Ext.PW-13/B) was prepared. Post mortem of the dead body was got conducted through Dr. K. C. Chopra (PW-5) who gave his report (Ext.PW-5/A). During investigation police recorded statements of the parties. Investigation revealed that deceased had vomited on way to the hospital. Investigating Agency took into possession material evidence, including letters written by the deceased to her parents. Report of the Hand Writing Expert was obtained and with the completion of investigation challan was presented in the Court for trial. 3 3. Accused was charged for having committed offences punishable under Sections 306 & 498-A IPC, to which she did not plead guilty and claimed trial. 4. In order to prove its case prosecution examined as many as 14 witnesses and statement of the accused under Section 313 Cr.PC was also recorded. Appreciating material on record trial Court acquitted the accused of the charged offences. 5. That Smt. Neelam Kumari died due to consumption of poison i.e. aluminium phosphide, cannot be disputed. In any event it is evident from the testimony of Dr. K.C. Chopra (PW-5) and the post mortem report (Ext.PW-5/A). However this fact by itself would not establish the guilt of the accused. 6. Sh. Kashmir Singh (PW-6) husband of the deceased has made the following statement in the Court: “PW-6:Statement of Shri Kashmir Singh, son of Jaishi Ram aged 34 years R/o Bakarti, Tehsil and District Hamirpur. Stated that Neelam Kumari had been my wife. Letter Ex.PW6/A was written by me to my father-in- law Amar Singh. I am fully conversant with the handwriting of my wife and letters Ex. PW1/C-1 to C- 7 were written by my wife to her father. XXXX by Shri B.S.Parmar. Adv. XXX for the accused. It is correct that none of the letters Ex. PW1/C-1 to C-7 were written in my presence. It is correct that I was in my village Bakarti, in April, 1997 with my wife and mother. My other sisters-in-law were also residing in the house, with my wife. I do not 4 remember, that in the month of Dec, 1997 Neelam Kumari was suffering from stomach-ache. However she used to remain ill. It is correct that my mother never illtreated my wife. Self stated that I have promised my wife to take her with me to Amritsar. It is correct to suggest that my wife used to live with me for maximum time at Amritsar with me. It is also correct that after delivery I had brought my wife and her child to the village as there was none to look- after her at Amritsar. R.O.&.A.C. Sd/- Sd/- ASJ-Hamirpur. Kashmir Singh” 7. Significantly testimony of this witness has not been controverted by the prosecution. 8. From the testimony of this witness, as also testimony of Amar Singh (PW-1), father of the deceased, it is quite apparent that deceased used to actually reside along with her husband at Amritsar and not in the village. This makes the prosecution story to be doubtful. In fact it has come on record that the other two married sons of the accused also reside with their respective families outside the village. It has not been established that sons were under the control of the accused or that she used to interfere in their matrimonial life. It is not the prosecution case that the accused was dependent upon the sons. Perusal of letters (Ext.PW-1/C-1 to Ext.PW-1/C-7) do not in any manner establish that accused used to torture, harass or maltreat the deceased for having brought insufficient dowry. 5 9. Prosecution case primarily rests upon the oral testimonies of PW-1, his brother Sh. Jit Ram (PW-2) and Pradhan of the area Sh. Raj Kumar (PW-7). Having closely scrutinized the statements of these witnesses, we find that the same do not inspire confidence. The witnesses do not appear to have deposed the complete truth. Witnesses do not appear to be trustworthy. It cannot be said that prosecution has been able to prove its case, beyond reasonable doubt, by leading clear, cogent, convincing and material piece of evidence. 10. As per the version of PW-1, accused used to harass the deceased for having brought insufficient dowry. His deposition is vague, unspecific to any incident, time, place or date. It is just a bald statement which is uncorroborated and unsubstantiated. Significantly this witness admits that deceased actually used to reside at Amritsar along with her husband. She spent maximum time at Amritsar than in the village. He also admits that accused did not live with her sons and the deceased at Amritsar. This witness admits that it was the relative of the accused who had informed him that deceased had consumed poison. This only shows that the accused had no say in the family matters. Personal lives of the sons and the incident of consumption of poison was promptly reported by the accused. Also victim was taken immediately to the hospital for medical treatment. He further states that he had complained about the atrocities and harassment caused by the accused to the Panchayat in writing. 6 But however we find that this version stands materially contradicted by PW-7 who states that no complaint in writing was made by PW-1. He only states that he was orally informed about the same. PW-7 also admits that Smt. Neelam Kumari never complained about the same to him. He also did visit the house of the accused in connection with the same. He volunteers to state that he had advised PW-1 to report the matter to the Panchayat in writing but he was not aware as to whether any follow-up action was taken or not. Noticeably he did not inquire from Sh. Amar Singh about further action taken in the matter. Hence from the statements of PW-1 & 7, it cannot be said that case of the prosecution stands established. 11. It is not the case of the prosecution that PW-6 was aware of the atrocities committed by the accused or that he had silently accepted the same or connived with the accused. Considering the facts in totality, it thus cannot be said that accused had subjected the deceased to cruelty or abetted her to commit suicide. Apparently there is no reason for the deceased to have consumed poison. But then suspicion also is not enough to establish guilt of the accused. 12. PW-2 has come out with another story. He states that accused used to harass the deceased not only for having brought insufficient dowry but also for the reason that she did not bear any children. Accused was threatening of getting her son remarried. But then this is not the version of the father nor is it 7 the prosecution case either. In fact PW-1 admits that a child was born to the deceased through the accused. Further this witness states that most of the time deceased used to reside in the house of the accused which version stands belied by PW-1 himself. He is thus not a truthful witness. 13. Sh. Pritam Chand (PW-3) has deposed that accused used to taunt the deceased for having brought insufficient dowry as a result of such maltreatment, deceased ended her life by consuming poison. This witness, when confronted with his statement (Ext.DB) recorded by the police under Section 161 Cr.PC admits the same not to be recorded therein. He has thus made improvement. He admits that he has been living separately for the last 16 years. He does not also remember when Smt. Neelam Kumari lived at Amritsar with her husband. This witness is not conversant with the fact and appears to have been introduced by the prosecution subsequently. 14. Thus prosecution has not been able to prove, beyond reasonable doubt, the fact that accused had abetted the deceased to commit suicide or subjected her to cruelty so as to fall within the meaning of Section 498-A IPC. 15. Accused has had the advantage of having been acquitted by the Court below. Keeping in view the principles laid down in Mohammed Ankoos and others vs. Public Prosecutor, High Court of Andhra Pradesh, Hyderabad, (2010) 1 SCC 94, it cannot be said that the Court below has not correctly 8 appreciated the evidence on record or that acquittal of the accused has resulted into travesty of justice. No ground for interference is called for. The present appeal is dismissed. Bail bonds, if any, furnished by the accused are discharged. (Justice R. B. Misra ) Judge (Justice Sanjay Karol) Judge December 13, 2011 (rana)