HIGH COURT OF HIMACHAL PRADESH AT SHIMLA Cr.A. No. : 33 of 1995 Reserved on: 3.3.2009 Decided on: 6.3.2009 State of Himachal Pradesh ……… Appellant. Versus Ram Kishan and another ………Respondents. Coram: The Hon’ble Mr.Justice Deepak Gupta, Judge. The Hon’ble Mr.Justice V.K. Ahuja, Judge. Whether approved for reporting? No. For the Appellant: Mr.Ramesh Thakur, Assistant Advocate General. For the respondents: Mr.M.A. Khan, Advocate. Per V.K. Ahuja, J.: This is an appeal filed by the State of H.P. against the judgment, dated 13.12.1993, of the court of ld. Sessions Judge, Una, vide which the respondents were acquitted of the charge framed against them under Sections 498-A and 304-B read with Section 34 of the IPC. Briefly stated the facts of the case are that Ram Kishan, respondent No.1, and his mother Sheela Devi, respondent No.2, stand charged for offences under Section 304-B and 498-A and under Section 306 of IPC for having subjected to cruelty Smt.Raj Kumari, wife of respondent No.1, within two years of their marriage and for making demands of dowry from her and having harassed her leading to her dowry death and in the alternative for abetment of ___________________________________________ Whether reporters of local newspapers may be allowed to see the judgment? Yes. suicide committed by her on 10.7.1991. The facts of the case further are that on 26.7.1991, a report was lodged with the police at 10.30 a.m. by Milkhi Ram, father of the deceased Raj Kumari. It was alleged in the report that the marriage in between Raj Kumari, deceased, and respondent Ram Kishan was performed about 1-1/2 years ago and both of them have been visiting their house after marriage. It was also alleged therein that this marriage had taken place because of the liking of Raj Kumari and Ram Kishan. Three months ago, a daughter was born to Raj Kumari, who died after 1-1/2 months. It was further alleged that Raj Kumari had written a letter to him last month that whenever her brother comes to the house, he be sent to her. On 17.6.1991, the complainant sent his son Madan Lal to meet Raj Kumari and respondent No.2 asked Raj Kumari as to why she had written a letter. On the same day, his daughter came with her husband, respondent No.1, to his house and told him that her mother- in-law had taken objection to the writing of letter by her. Raj Kumari remained in his house upto 3.7.1991 and during this period she told the complainant that since her husband Ram Kishan has to be confirmed, her husband has demanded Rs.6,000/-. The complainant paid Rs.2,000/- to his daughter and assured her that he would pay the remaining amount later on and Raj Kumari left with her husband alongwith money. He further alleged that Ram Kishan had stayed in his house on 8.7.1991 also and left for his house on the next day and he learnt that Raj Kumari has died on 10.7.1991. It was alleged that Raj Kumari had taken some poisonous substance due to harassment by both the respondents. He further alleged that he paid Rs.2,000/- in presence of one Prem Chand, who was sitting there. On this report, a case was registered and after investigation, the challan was filed before the learned Judicial Magistrate, who committed the case to the learned Sessions Judge, who tried the respondents leading to their acquittal. We have heard the learned counsel for the parties and have gone through the record of the case. The submissions made by the learned Deputy Advocate General for the State were that there was sufficient evidence in the form of statements of witnesses and letter Ext.PC written by the deceased in which she had mentioned about the said demand of Rs.6,000-. Thus, it was clear that the guilt of the respondents stood established from the evidence and the findings to the contrary can be termed as perverse calling for an interference by this Court. On the other hand, the learned counsel for the respondents had supported the impugned judgment for the reasons given therein supplementing it by the submission that there is nothing on record to show that the said letter Ext.PC was written by the deceased or it was received prior to her death and the letter in question was a suspicious letter, which cannot be the basis of holding the respondents guilty. It was also submitted that apart from this letter or some evidence in this regard, there is no other evidence in regard to the harassment or cruelty meted out to the deceased and the delay, in question, in lodging the FIR was not satisfactorily explained by the prosecution, which makes the prosecution story doubtful and as such there is no merit in the appeal, which deserves to be dismissed accordingly. After considering the arguments advanced at the hearing, we are of the opinion that first point which needs to be considered is the delay in lodging the FIR and the grounds which were alleged in the FIR at the time of lodging of the report by the father of the deceased PW-1 Milkhi Ram. It is clear from a perusal of the FIR Ext.PA and the evidence led by the prosecution that the deceased had died on 10.7.1991 at about 6.30 p.m. and the FIR, in question, Ext.PA was lodged by Milkhi Ram, father of the deceased, on 26.7.1991, at 10.30 a.m. Thus, there has been delay of about 16 days in lodging the report with the police. We have to consider the explanation given by Milkhi Ram, father of the deceased, if any, and as to whether the same can be termed plausible or not. It is clear from the statement of PW-1 Milkhi Ram that he came to know that Raj Kumari was beaten up by the accused and as per the medical opinion, she had died of poisoning. He further stated that when he saw the dead body of Raj Kumari, her neck was swollen, her lips were bluish and her upper jaw in the centre was bleeding and her eyes were pale. He stated that he went to the police to report the matter, but they put off the matter repeatedly saying that they were busy in one investigation or the other. He then made complaints to Shri Shanta Kumar, the then Chief Minister, Shri R.R. Verma, a high police officer, and Deputy Commissioner. He further stated that it was after 7-8 days of the death of Raj Kumari that the case came to be registered at the Police Station. In cross examination, PW-1 admitted that he was in possession of the receipts of the registered complaints addressed by him to S/Shri Shanta Kumar, R.R. Verma and Deputy Commissioner and he can produce them. He has stated that he retained the copies of those complaints as well. He has further stated that on the evening of cremation, he had gone to the Deputy Commissioner and the Superintendent of Police and had complained to them. From the above discussion of the statement of PW-1 Milkhi Ram, it is clear that he was in possession of the copies of the complaints addressed to three authorities and had also got the postal receipts and had undertaken that he can produce them, but he was never asked to produce them nor he voluntarily produced them during investigation or trial. In case, he had produced those copies and the receipts, it could have given credence to his statement that he had not concocted the facts on a later date but had made the complaint at the earliest. However, non-production of these vital documents makes his version doubtful that he made any complaint earlier to the lodging of the FIR Ext.PA after 16 days of the occurrence. Therefore, his version becomes doubtful and has to be taken with caution. Coming to his statement, he has further stated as PW-1 that he had told the police that the accused used to beat his daughter Raj Kumari. He was confronted with the FIR Ext.PA in which it is not so recorded. He also stated that he had told the Thanedar that on 3.7.1991, respondent Ram Kishan was insisting on payment of Rs.6,000/-. He was confronted with Ext.PA where it is not so recorded. He was also confronted with Ext.PA wherein he had not mentioned about the weeping of Raj Kumari and her saying that her mother-in- law was demanding Rs.6,000-, though he has narrated these facts to the Thanedar. He further stated that at the time of lodging of the FIR, he had stated to the Thanedar about the receipt of the letter from Raj Kumari on 8.7.1991 who had asked for early payment of Rs.4,000/-, which is not so recorded in the FIR Ext.PA. In case the letter Ext.PC had already been received on 8.7.1991 and was in the knowledge of this witness, he would have certainly mentioned this fact in the FIR which was lodged by him after a lapse of 18 days of the receipt of this letter at the time of lodging of the FIR on 26.7.1991. He was also confronted with Ext.PA in which it was not mentioned that Raj Kumari had mentioned in the letter that she was beaten and was not being provided with food and fire wood, which is not so recorded in the FIR. He also stated that he had narrated at the time of lodging of FIR that accused were complaining about giving of meagre dowry, which is not so recorded in the FIR Ext.PA. He also stated that he had told the Thanedar at the time of lodging of FIR that his son Madan Lal had returned from the house of Raj Kumari and informed him that she was being harassed which was never recorded in the FIR Ext.PA. The non-mentioning of all these facts in the FIR, though the FIR was lodged after considerable lapse of time, i.e. after about 16 days, makes his version doubtful. It cannot be said that he was under a shock and therefore, he could not mention these facts earlier. Moreover, he admitted that before lodging the present FIR, he had not made any complaint about the torturing of his daughter to any authority during her life time. His statement also shows that the dead body of Raj Kumari had been taken to the house of the accused after post mortem and he was present there alongwith his sons, but at that time he never made any complaint to those present about the death of his daughter, though he stated that in the evening of cremation, he had gone to the Superintendent of Police and Deputy Commissioner and had complained there. All these facts clearly show that there are many facts which have not been explained by this witness and rather he has made considerable improvements. Coming to the letter Ext.PC, which has not been relied upon by the learned trial Court, the learned trial Court has made some observations in regard to the said letter and the evidence in this regard, which cannot be termed as incorrect. It is observed by the learned trial Court that the letter Ext.PC bears the seal of Post Office of date 7.7.1991, which was a Sunday and the Post Offices remain closed on Sundays throughout the country. It was further observed that if the Post Office was functioning on 7.7.1991 in a small village Jajjar, the letter could have been delivered on the same day. The letter was posted from a place Bharwain, which is at a distance of 20 kms. from the village of the accused, while Jajjar is 7 kms. from Bharwain. The letter in question was produced to the police on 5.9.1991 after about two months of its receipt, though Raj Kumari had died on 10.7.1991. The learned trial Court had rightly observed that if this letter had been received, PW-1 Milkhi Ram would not have missed to mention this important piece of evidence in the FIR lodged on 26.7.1991. PW-1 Milkhi Ram has mentioned that the letter was received by them on 8.7.1991, which was read over to him by PW-7 Sanjogita Devi. However, the mother of the deceased PW-4 Gurdei is silent about the receipt of any such letter. She only states about the letter received by them before Raj Kumari had left for her in- laws house, in which she had asked for sending her brother to her marital home. PW-6 Madan Lal, brother of the deceased, has stated that this letter was not within his knowledge nor it was shown to him by any member, but again stated that it was shown to him after 3-4 days of death of Raj Kumari. The case of PW-7 and PW-1 is that PW-7 Sanjogita Devi kept the letter in her book and had lost it and on extensive search, it was traced after two months. In case the brother of the deceased was also in the know of this letter, this fact would have found mention in the FIR lodged by his father. Coming to the hand writing, PW-7 Sanjogita Devi has stated that it is in the hand of her sister and she stated that it was traced after 10-25 days of the death of Raj Kumari, and therefore, it should have been produced in the month of July itself, but there is no explanation as to why it was not produced to the police till 5.9.1991. There is evidence of PW-15 Rattan Chand, teacher of the School, who has identified the hand writing of Raj Kumari on Ext.PE, admission form, but he did not identify the hand writing of the deceased on Ext.PC to be that of the deceased. The accused had produced DW-2 Arvind Sood, a private hand writing expert, who has stated that this letter is in the hand of PW-7 Sanjogita Devi. Thus, in the circumstances of the case, in which the letter was subsequently recovered and no reference was made to this letter earlier at any time, it makes the letter suspicious in which the reference was made to the demand of the balance amount and this letter cannot be, therefore, the basis of holding the respondents guilty for the charge framed against them. Coming to the other part of the evidence in regard to the demand of Rs.6,000/-, the prosecution has examined PW-3 Prem Chand, who has stated about the payment of Rs.2,000/- to Raj Kumari and that Milkhi Ram had agreed to pay further sum of Rs.4,000/-. About this fact, there is statement of PW-1 Milkhi Ram, father of the deceased, PW-4 Gurdei, mother of the deceased, and PW-6 Madan Lal, brother of the deceased, also. However, the evidence led cannot be said to be sufficient to prove that it was a demand of dowry or that for that matter, the deceased was being harassed. It is a fact that the deceased died by taking some poisonous substance, but this, in itself, is not sufficient to hold that it was due to the demand of dowry since the cause of harassment, if any, until and unless proved on record, can be said to be within the knowledge of the deceased herself. An argument was also raised that the deceased was depressed due to the death of her daughter within 1-1/2 months of her birth, but there is no evidence on record to show that she expressed her depression to any of her relatives at any time. However, the evidence led in regard to the demand of Rs.6,000/- cannot be held to be a dowry demand or her death cannot be termed as dowry death. Moreover, there is nothing that when she accepted the money one week prior to her death, she had specifically complained that the respondents were harassing her since she has not brought the remaining amount. On the other hand, it has been mentioned in the FIR that thereafter also and even two days prior to her death, respondent No.1 had stayed in the parental house of the deceased, as was alleged in the FIR Ext.PA itself by the complainant that respondent No.1 stayed in their house on 8.7.1991 and had gone back on the next day. In case the relations were so strained or the respondents were harassing the deceased, respondent No.1 would not have volunteered to stay in the house of his in-laws. There is no other specific evidence on record in regard to the harassment or demand of dowry and the final findings recorded by the learned trial Court holding that the guilt of the respondents was not established beyond any reasonable doubt cannot be termed as perverse calling for an interference by this Court. In view of the above discussion, we accordingly hold that there is no merit in the appeal filed by the State of H.P., which is dismissed accordingly. The bail bonds furnished by the respondents shall stand discharged. (Deepak Gupta), J. March 6, 2009. (TILAK) (V.K. Ahuja), J.