Whether reporters of local papers may be allowed to see the judgment? IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. Cr. Appeal No.440 of 2003. Date of Decision: September 21, 2010. ------------------------------------------------------------------------------------------------------------- State of H.P. …… Appellant. Versus Jamil Khan and others. ……. Respondents. Coram The Hon’ble Mr. Justice Surinder Singh, Judge. Whether approved for reporting ? Yes. For the Appellant : Mr. A.K.Bansal, Addl. Advocate General. For Respondents : Mr. Dinesh Bhanot, Advocate, for respondents No.1 to 3. Mr. Himmat Negi, Advocate, vice Mr.Ajay Sharma, Advocate, for respondent No.4. Surinder Singh, J (oral) : The State filed instant appeal against the acquittal of the respondents, for the offences punishable under Sections 498-A, 323, 304-B, 506 and 201 read with Section 34 of the Indian Penal Code passed in ST No.6-NL/7 of 2001 dated 19.6.03 by the learned trial Court. 2. Heard and gone through the record. 3. In short the prosecution story can be stated thus. The parties in this case profess Islam. - 2 - (i) On 20.4.98, Smt. Bashira Bibi (deceased) was married to Jamil Khan respondent No.1. (ii) She was lean, thin, anemic and feeble, suffering from various chronic diseases, including eye sight problem. (iii) She had given a birth to a female child, who also died. (iv) In the month of March, 2000, Bashira Bibi remained hospitalized in District Hospital, Bilaspur. (v) On 18.9.2000, she was admitted in the PHC Amb by her father from where, she was referred to Zonal Hospital Una, where she was attended upon by respondent Dr.Vijay Kumar Raizada. (vi) On 18.9.2000, PW8 ASI Madan Lal moved an application for recording her statement, but she was opined to be unfit to make any statement. (vii) On 22.7.2000, she is alleged to have made a statement to the Police Officer regarding the cruelty on demand of dowry alleged to have been meted out to her by the - 3 - respondents. Her statement Ex.PW2/A was sent for registration of case to Police Station Barotiwala, having its territorial jurisdiction. FIR Ex.PW13/A was registered and respondents were arrested. (viii) She died on 27.9.2000, while she was under treatment of respondent Dr. Vijay Kumar Raizada. (ix) It is alleged that in collusion with respondents No.1 to 3, respondent No.4 Dr.Vijay Kumar Raizada did not report the matter to the police and the dead body was released to her parents without postmortem and it was buried in the presence of relatives by her parents. (x) During the investigation, police also sought the expert opinion by constituting the Board of Doctors headed by Dr. D.C. Chamail, as its Chairman and Dr. R.K. Patial, Dr.V.K. Mishra and Dr. S.S.Minhas, its members. After examining the whole record of treatment, the Medical Board submitted the report Ex.PW12/A. The Board aforesaid opined:- - 4 - (a) There was no co-relation between the injuries mentioned on the person of the deceased and the death; (b) The nature of the treatment given at Zonal Hospital, Una was adequate; (c) Exact cause of death cannot be ascertained. Patient probably died of congestive Heart failure and Anemia. She also had renal dysfunction and rheumatic heart disease; and (d) The injuries mentioned in the MLC and indoor record of the Zonal Hospital Una was not sufficient to conclude the cause of death in ordinary course of nature. [Emphasis mine] (xi) During the investigation of the case, police took into possession the medico legal certificate Ex.PW5/A and treatment from Zonal Hospital Una. The treatment summary shows that she was in bad shape because of heart disease, asthma, anemia, respiratory disorder, renal and retinal problems. - 5 - 4. On completion of the investigation, the police came to the conclusion that it was a case falling under the provisions of aforesaid sections, against the respondents, as such, presented the challan against them in the court for their trial. 5. The respondents were accordingly charge- sheeted. They abjured their guilt and claimed to be tried. To prove its case, prosecution examined the parents of the deceased, Panch and Pradhan of the concerned Gram Panchayat, to whom the complaint of alleged dowry was made and the medical doctors. 6. The respondents were also examined under Section 313 of the Code of Criminal Procedure. They denied the circumstances, which were found attendant upon each of them. They maintained their innocence. They took up the stand that they were implicated by the parents of the deceased falsely as they became inimically disposed of towards them after the death of their daughter. When called upon to enter into their defence, the respondents examined DW1 Shri Bachna to prove that the deceased was a chronic heart patient and anemic and that she was being treated by one Shri Gian, who used to practice - 6 - witchcraft. She was taken by her sister Mukhtiari for treatment to him. It was at that time that she sustained tong injury on her back. On 14.9.2000, both had returned to their house at Kunjhal, thereafter went to her maternal uncle Karim Deen in Tehsil Amb accompanied by her father-in-law Noor Deen respondent. 7. At the end of trial, learned trial Court acquitted the respondents on the ground that the allegations with respect to demand of dowry were not proved, further the statement of the deceased placed on record was not confidence inspiring. It was also held that two views were deducible from the evidence on record, thus, the benefit of the view favourable to the respondents was given to them. The learned trial Court observed that respondent No.4 (doctor) had treated the deceased patient with the best of his ability. The blood transfusion was done, there was nothing on record which could even remotely suggest that respondent doctor caused the disappearance of the evidence to save the respondents from legal punishment, especially when the cause of death of the deceased was due to chronic cardio failure. - 7 - 8. The scrutiny of evidence on record by me reveals that the deceased was brought on 18.9.2000 at about 8.30 p.m. to the PHC by her parents. PW15 Dr. S.K. Verma, on her general physical examination, found her in severe distress and difficult in talking. On her clinical examination, he noticed that her sound was muffled bilaterally, chest was full of crepts. She had history of blood in sputum, pallor was plus three. Skin cold and clammy. She was found unfit to give statement. Keeping in view the critical condition of the deceased, she was referred to Zonal Hospital, Una for further management. He also noticed the multiple blue coloured contusions present on the lower back and back of chest wall, which was superfluous and simple in nature. He had issued MLC Ex.PW15/B. He also sought the opinion of the Medical Specialist (PW5) by making request in writing on the MLC aforesaid. 9. On 18.9.2000, PW5 Dr. Satender Chauhan had examined the deceased and issued certificate Ex.PW5/A. He admitted that the deceased was a chronic patient of rheumatic heart disease with mitral stensified with mitral regurgitation, severe anemia with cardiac failure, causing severe respiratory distress and - 8 - this was for the information of PW15 Dr. S.K. Verma, on his request as aforesaid. He had also handed over the opinion of the Board Ex.PW12/A alongwith case summary and Treatment Chart (Bed Head Ticket) of the deceased to the police. 10. PW12 Dr. D.C. Chamail, Senior Medical Superintendent, IGMC, Shimla, who was also the Chairman of the Medical Board, scrutinized the record of the deceased and gave opinion on the basis of her treatment record as aforesaid. PW15 aforesaid admitted that the deceased also had a history of hypertension, C.R. failure, and retinopathy. He testified that the deceased remained as outdoor patient w.e.f. I5th March to 28th March, 2000 in District Hospital Bilaspur, at that time she was also referred to PGI as she was in a critical state. Her blood urea was 72 mg percent, which was due to poor functioning of the kidney as the serum creatinine was poor. He has further stated that if the patient is not treated properly for these diseases, it could lead to death. Further because of the poor functioning of the kidney, she also required dialysis. He admitted that in every death case where the patient admitted in the hospital, postmortem is not - 9 - necessary, but the doctor treating the patient in routine gives his opinion for the cause of death. He also stated that if any dead body is buried and exhumated the postmortem is still possible. 11. The medical record also reveals that she was referred to PGI Chandigarh for further treatment, while she was undergoing treatment at Bilaspur. Even respondent No.4 doctor had also referred her to PGI Chandigarh on 27.9.2000, as is evident from her bed head ticket Ex.PW17/B. 12. Although the deceased had died within seven years of her marriage, but there is no evidence that soon before her death she was subjected to cruelty or harassment by her husband or her parents-in-law, in connection with demand of dowry and further that alleged cruelty or harassment is not shown to have been meted out to her soon before her death. Rather record reveals her death was because of various chronic problems for which she was being treated by the respondents and ultimately by parents but could not survive despite best treatment as observed by the Medical Board. - 10 - 13. The main stay of the arguments of the learned Additional Advocate General is the statement of her parents and the alleged statement Ex.PW2/A of the accused recorded by PW8 ASI Madan Lal, but these are subject to a lot of criticism for obvious and various reasons. The parents of the deceased have stated that the deceased was maltreated and harassed by the respondents and she was also given beatings for not bearing the child and for not meeting the demand of dowry. 14. There is absolutely no cogent evidence with respect to beatings given to the deceased by the respondents. Insofar as the demand of dowry is concerned, PWs 1 and 2 have stated that on oral complaint by the deceased to them, they informed PW3 Pradhan Balbir Singh and PW4 Panch Lekh Ram of the Panchayat, but both of them turned hostile and did not support the case of the prosecution. They disowned their statements, recorded by the police under Section 161 of the Code of Criminal Procedure. They have categorically stated that no complaint was ever filed in the Panchayat by the deceased or her parents nor made any oral complaint as alleged. It is also denied - 11 - that the deceased was beaten up by the respondents and a compromise was executed inter se the deceased and her family members and also that they had brought the deceased from the district hospital Bilaspur to her matrimonial house, rather PW4 Lekh Ram testified that the husband of the deceased was employed in a factory at Barotiwala and he used to get the treatment of the deceased medically. 15. The allegations of demand of dowry and alleged cruelty were revealed by her parents (PWs 1 and 2) for the first time after her death to the police after she was buried. No reason was assigned as to why during her life time no such complaint in writing was made either to the Panchayat or to police. 16. Whereas PW1 Nazir Bibi mother of the deceased admitted that the deceased was being medically treated in District Hospital, BIlaspur and at Shimla several times, which means that the deceased was suffering from various diseases since long. However denied that she was heart patient since her childhood. She admitted that the deceased alongwith her husband used to visit the parental house regularly after their marriage. She also admitted that no ‘Khangi - 12 - panchayat’ was ever convened. She also admitted that the deceased was being treated for eye sight. She further stated that she did not send any letter informing them about the alleged demand of dowry, even admitted that she did not call for any member of the ‘biradari’ or the Panchayat when the deceased had complained about the demand of dowry. Further according to her, when the deceased was hospitalized at Bilaspur, her husband PW2 Shafi Mohammed was present and also admitted that there is no custom of dowry in the Mohammden law. She also admitted having returned dowry articles whatever provided at the time of marriage in ‘Khangi panchayat’ on 22.9.2000 when she was hospitalized at Zonal hospital, Una. She was confronted with her statement Ex.PW1/A with respect to demand of dowry articles by the respondents, wherein this important fact did not find mentioned. She further admitted that the deceased was medically treated at Shimla qua the brain and eye sight and she had been taking the medicine regularly for the various diseases. Pertinently, she stated that Barotiwala police visited the Hospital at Una and at that time deceased was fit to make the statement, but - 13 - no such statement was recorded by any police official of Barotiwala Police Station, but I do not find any such document showing that she had made any statement before the police official of Barotiwala Police Station. 17. PW2 Shafi Mohammed, father of the deceased stated that the marriage inter se the deceased and respondent No.1 was solemnized with the intervention of his relative Mukhtiari and one Ajmer, but when the complaint of alleged demand of dowry alleged to have been made by the deceased, he also did not ask either Mukhtiari or Ajmer who were his sympathizers to look into the matter and verify the case. He was also confronted with his statement Ex.PW2/A wherein there is no reference about the demand of dowry, as alleged. So this version as stated by him as well as his wife for the first time only during the trial of the case and it is a material contradiction which cannot be believed. Although, he stated that the deceased was checked by Dr. S.K.Verma, but he denied that she was suffering from eye disease was anemic and suffering from heart problem which is against the proved facts on record. He further stated that the dead body was handed over to him by the respondent-doctor saying - 14 - that he had informed the Police Officer, as such there was no police case. He also admitted that respondent No.4 Dr. Raizada rang up to a Police Officer, but there was no counter reply from that side. He himself did not go to the Police Station to inform them. He also did not ask any doctor to perform the postmortem. Even he did not make any complaint against respondent No.4 to his superiors. He further stated that when the deceased died, many of his relatives had assembled there, but none of them had reported the matter to the police. He further stated that when the police visited his village after her death, his statement was not recorded. Therefore, the evidence discussed above does not prove the complicity of the respondents with the alleged crime. The death of Bashira Bibi was owing to various reasons of ailments. 18. Another important evidence on record is Ex.PW2/A, i.e. the alleged statement of the deceased. It stands proved that the deceased was admitted in the hospital at Una on 18.9.2000, she was weak, feeble, anemic and suffering multifarious chronic diseases. She was unable to walk and speak. She was administered various medicines and mental depressants like - 15 - diazepam as per bed-head ticket reveals. On 18.9.2000 PW8 ASI Madan Lal had also moved an application to the Medical Officer to know whether she was fit to make statement, the doctor opined that she was ‘NOT FIT’ to give her statement due to severe mental disorder as per MLC Ex.PW5/A. Again, said Police Officer had visited the hospital on 22.9.2000 and moved another application of similar nature. As PW8, ASI Madan Lal did not say any where that on this application, doctor had opined that the deceased was fit to make statement. He simply stated that he had moved another application for recording her statement Ex.PW2/A. The endorsement on the application which allegedly purports to be by the doctor does not show as to who was the doctor opining that she was ‘fit to make statement’ when she was administered mental depressant and remained in the exhumative care of hospital. She also did not show any sign of improvement. Thus, neither Police Officer (PW8) can be believed to prove her statement nor it is confidence inspiring. 19. Thus, the prosecution has miserably failed to prove that the death of Smt. Bashira Bibi was caused - 16 - either by burn or bodily injuries or other than in normal circumstance. As stated above, she had various ailments, despite providing the best treatment she had died and further the prosecution also could not prove that she was subjected to cruelty or harassment by the respondents, in connection with demand of dowry. No such cruelty or harassment was shown to have been meted out soon before her death by the respondents No.1 to 3. Insofar as the respondent No.4 is concerned, the prosecution was not able to prove that he had destroyed the evidence in any manner, in collusion with other respondents. The two indispensable basic ingredients for all the three tiers in Section 201 IPC are required to be proved against him: (i) the accused should have had knowledge that an offence was committed or at least that he should have had reasons to believe it; and (ii) he should then have caused disappearance of evidence of commission of that offence. The prosecution cannot escape from establishing the aforesaid two basic ingredients for conviction of the accused for the offence punishable under Section 201 of the Penal Code. - 17 - 20. In the instant case, there was no reasonable belief or knowledge attributable to the doctor that the offence was committed. Even at that time, neither the parents of the deceased had made any complaint to the police, nor it is shown that the statement Ex.PW2/A was brought to his knowledge. Even it was not known, under what circumstance, PW8 had if at all recorded the statement of deceased and who was the doctor who had made the endorsement that she was fit to make the statement, rather the record reveals that the amount of medicines given to her and mental depressants taken by her would have affected her mental faculty. Therefore, against the above background, statement Ex.PW2/A cannot be made the basis for conviction of the respondents. Respondent No.4, entertained no suspicion about her death, thus non-recommending postmortem or informing police would not have made him liable for the offence charged. Further, the body of the deceased was only buried, it could have been exhumated and the postmortem got done as stated by PW12 Dr. D.C. Chamail. - 18 - 21. Therefore, for the reasons aforesaid, in my considered opinion, the acquittal of the respondents cannot be interfered with. The appeal is without merit, it is thus dismissed. 22. The respondents are discharged of their bail bonds entered upon by them at any time during the proceedings of the case. 23. Send down the records. September 21, 2010. (Surinder Singh) (Pds) Judge.