IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA. Cr. Appeal No. 406 of 1996 Date of Decision : March 23, 2010 State of H.P. …Appellant. Versus: Kamlesh Kumar & Anr. …Respondents-accused. Coram: The Hon’ble Mr.Justice Deepak Gupta, Judge. The Hon’ble Mr.Justice Sanjay Karol, Judge. Whether approved for reporting?1 No For the appellant: Mr. R. M. Bisht, Dy. A. G. For the respondents :Mr. Adarsh Kumar Vashist, Advocate Deepak Gupta, J. (Oral). This appeal by the State is directed against the judgment dated 1.9.1995 delivered by the learned Sessions Judge, Kanga at Dharamshala, H. P., in Sessions Case No. 24- P/VII-1995, acquitting the accused of having committed offences punishable under Sections 306 & 498-A of the Indian Penal Code. The undisputed facts are that the deceased Jagtamba Devi, daughter of Mast Ram (PW-2) and Rukmani Devi (PW-3) was married to accused Kamlesh Kumar. Second accused 1 Whether reporters of Local Papers may be allowed to see the judgment? 2 Ambro Devi is the mother of Mast Ram. It is also not disputed that the deceased Jagtamba Devi died of drowning. According to the prosecution, she committed suicide by jumping into the Khad from Jandpur bridge near Palampur. According to PW-2 Mast Ram, on 9.7.1993 the deceased along with her husband Kamlesh Kumar had come to his house. Accused Kamlesh Kumar had demanded Rs.1,000/- as fare to go to Jamnagar. He had given Rs.1,000/- to Kamlesh Kumar and a sum of Rs.20/- to his daughter Jagtamba Devi. He further states that the relations between his daughter and her in-laws were absolutely fine till about 2-2½ months prior to her death. According to him, the deceased was being harassed for bringing less dowry. This witness was confronted with his original complaint which was made by him in which there is no mention of the accused Kamlesh Kumar demanding Rs.1000/- from him nor there is any mention of any dowry being demanded. In fact in the original complaint, it was clearly stated that the accused had never demanded any dowry. PW-2 had in fact complained that he suspected that his daughter had been murdered by the accused persons. According to him, she had not committed suicide. He admitted that the relations between the husband and wife had soured for the last 2-2½ months because accused Kamlesh Kumar and his mother Ambro Devi were levelling allegations against the deceased that she in connivance with her parents had got her pregnancy terminated at Atto Devi Clinic and Nursing Home near Paprola. According to PW-2, on 3 10.7.1993 at about 1.00 p.m. he was informed by one Pinku that his daughter was missing from the house of her in-laws. He thereafter deputed his son Madan Lal who went along with Pinku to search for the daughter. At about 7.30 p.m. he was told by his son and nephew that the dead body of the deceased was lying stuck in Awha Khad. He thereafter went to the spot but he could not see anything since it was dark. He then again went to the spot in the morning along with the police and the dead body was recovered. The statement of PW-3 is to the similar effect. She also stated that the accused Ambro Devi had complained to her that the deceased had got her pregnancy aborted. She was also confronted with her statement recorded under Section 161 Cr.PC (Ext.DB), in which there is no mention of Rs.1000/- being paid to accused Kamlesh Kumar. She has also brought in a new twist to the story. According to her, after one year and three months of the marriage, the accused had started proclaiming that the deceased could not bear a child. This version is obviously false because it does not find mention in the complaint of PW-2, statement of PW-2 or in the statement of any other witness. The mother PW-3 admits that on 9.7.1993, when her daughter and accused Kamlesh Kumar came to their house, there was no ill- feeling between the two. PW-4 Bishan Dass is the uncle of the deceased being her paternal aunt’s husband. He did not support the prosecution version. He clearly stated that the deceased was never treated 4 with cruelty or harassed by the accused. According to him, about two months before the death of the deceased, the two accused persons and Balak Ram, father of accused Kamlesh Kumar and husband of accused Ambro Devi came to him and complained that the deceased had without their consent got her pregnancy aborted. No reliance can be placed on the statement of PW-6 Punita Devi. According to her, she was washing clothes near the Kuhal (water channel) on 7.7.1993 and saw a fight between the accused and his wife Jagtamba Devi. In cross-examination, she stated that she had not mentioned about this fact to any person. Her statement was recorded in Court for the first time. She also admitted that she had come to the Court at the instance of PW-2 Mast Ram. She is obviously a procured witness. PW-7 does not support the prosecution version at all, since according to him on 9.7.1993, he saw the accused Kamlesh Kumar and his wife deceased Jagtamba Devi alighting from a taxi near his shop and then going towards their house. He clearly admits that they went happily. From the aforesaid facts, it is absolutely clear that the accused persons suspected that the deceased had got her pregnancy aborted. They suspect that this was done in connivance with her mother and this had given rise to some acrimony between the two sides. The body of the deceased was recovered by the police on 11.7.1993 in the presence of PW-5 Suman Kumar. He 5 clearly stated that when the body was recovered, there was one prescription slip of Atto Devi Clinic and Nursing Home, which was also taken into possession. As per Dr. S. K. Sood, PW-1, the deceased died of drowning. The question which arises for decision is whether she committed suicide or died accidentally or was killed. Even the Investigation Officers (PW-11 and PW-12) clearly state that they only assumed that the deceased might have committed suicide but are not certain about it. No person can be convicted under Section 306 for abetment of suicide unless it is first proved beyond reasonable doubt that the deceased had committed suicide. In the present case, the prosecution has miserably failed to prove that the deceased committed suicide. She could have died accidentally also by falling into the khad. This probably cannot be ruled out. It is also apparent that the parents of the deceased have tried to put up a false story after the daughter died. In the initial complaint, there was no mention of any dowry being demanded and there was no mention of Kamlesh Kumar demanding money or being given Rs.1000/- for travelling to Jamnagar. This was added at a later stage. Therefore, this makes the statements of the parents suspect. There is also some un-natural conduct on the part of the father. Assuming what he is saying is the gospel truth, the fact is that by 7.30 p.m. on 10.7.1993, he had come to know that his daughter’s dead body was lying in the Awha khad. The occurrence took place in the 6 end of July when the sun sets very late. Even assuming it was dark what prevented PW-2 from collecting other villagers, taking torches, and other gas lights etc. to pull out the body of the daughter. He could not have been certain that she was dead. He did not even try to rescue his daughter. He even went to the police the next day. This conduct is highly unnatural. In our considered opinion, this conduct clearly shows that either he came to know about the death of his daughter on the morning of 11.7.1993 or this time was used to hatch a false story. Neither Pinku nor Madan Lal were examined. Surprisingly, PW-2 states that he cannot even give the real name and parentage of Pinku whereas according to him Pinku is his nephew. The non-examination of Pinku and Madan Lal also casts a doubt on the prosecution story. Another very important factor is that even as per the prosecution version when the body of deceased Jagtamba was recovered, one prescription slip of Atto Devi Clinic and Nursing Home, Paprola, was taken into possession vide memo Ext.PD. This document has not been produced on record and an adverse inference shall have to be drawn against the prosecution. The defence set up that the deceased had got her pregnancy terminated becomes very probable because of the withholding of such evidence. Any husband or mother-in-law would get annoyed, if the wife/daughter-in-law gets her pregnancy terminated without taking them into confidence. This would be normal human conduct. If on this account the deceased 7 committed suicide, it cannot be said that the suicide was on account of abetment by the accused or on account of cruelty meted out by her. In view of the above facts, we find no merit in the appeal which is accordingly dismissed. The bail bonds are discharged. ( Deepak Gupta ) Judge. ( Sanjay Karol ), Judge. March 23, 2010. (rana)