IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. Cr. Appeal No.455 of 2001. Dated of Decision: May 08, 2008. State of H.P. ……… Appellant. Versus Virender Kumar and others. ……. Respondents. Coram The Hon’ble Mr. Justice Surjit Singh, Judge. The Hon’ble Mr. Justice Surinder Singh, Judge. Whether approved for reporting? Yes. For the Appellant : Mr. P.K. Sharma, Addl. Advocate General with Mr. P.M. Negi, Deputy Advocate General. For the Respondents : Mr. Ramakant Sharma, Advocate. Surinder Singh, J (oral): Heard and gone through the record. The respondents were tried and acquitted of the offence punishable under Section 306 read with Section 34 of the Indian Penal Code. The admitted facts of the case are that: a) The respondent Virender Kumar Sharma was married to Smt. Neelam Sharma (deceased) on 25.11.1987. He was working in a private Company at Ludhiana. b) During this wedlock, Neelam Sharma gave birth to two daughters one of which is DW-1 Sakshi Sharma. c) On 9.11.1999, Neelam Sharma died of consumption of poison. Whether reporters of local papers may be allowed to see the judgment? Yes 2 d) The relationship between the deceased and her husband were very cordial till the year 1992. e) In the year 1992 Virender Kumar respondent was posted at Ludhiana, where he resided with his family. Prosecution Case. It is alleged that while his posting at Ludhiana, Virender Kumar started purchasing lottery tickets and shares of different companies. He went in heavy losses. It became difficult for him to manage the food and shelter to himself and his family from his salary. To improve his financial worth he sold the ornaments of his wife and also a plot, at Panchkula, but still he could not bail out himself. In the year 1997, Virender Kumar Sharma was transferred to Belgaon in southern part of the country. To join at the new place of posting, he was short of money to meet the expenses of going at the new place of posting. He requested his wife Neelam to get the amount of Rs.10,000/- from her parents. To meet the demand of his daughter, Om Parkash (PW2) her father sent an amount of Rs.8,000/-. Thereafter, Virender Kumar Sharma, respondent alleged to have demanded more money in the shape of dowry and Neelam Sharma prevailed upon her father to send Rs.10,000/-, more to Belgaon. Thereafter the respondent Virender Kumar Sharma was sent by his Company to Libiya. Before going to Libiya, he visited his in- laws at Yamuna Nagar with a further demand of money and they paid Rs.5,000/- to him. He remained at Libya for 2 ½ 3 months and then returned to Nahan with a view to start some business of Dhoop-Aggarbati. It is alleged that he demanded more money to start the said business. Neelam Sharma sent a letter to her father to arrange Rs.5,000/-. She also complained about the alleged harassment to her parents. The complaint was sent to the Superintendent of Police, Nahan, but Virender Kumar Sharma had felt sorry for his alleged conduct and gave in writing to the Station House Officer, Nahan, thereafter the matter was dropped. On 9.11.1999, around 6.00 p.m., Neelam Sharma consumed poison. She was taken to the local doctor, a private medical practitioner. He advised him to take her to the hospital. Her father was informed. He reached Nahan but by that time Neelam Sharma had already expired. Respondent Lalita, the mother-in-law of the deceased, was in her house, told Om Parkash that Neelam had died a natural death. After the post-mortem, she was cremated. The post-mortem report is Ex.PD. PW2 Om Parkash came to know on 10.12.1999 that as per the report of the Chemical Examiner (Ex.PE), the cause of death was the presence of oregano-phosphorus in the viscera. On coming to know about this, he lodged the FIR Ex.PA and produced letters Exts.P1 to P6 of the deceased and Ex.P7 of the respondent to the police. The police had prepared the inquest report Exts.PC and PC/1, recorded the statements of the witnesses. After completing the investigation, the case 4 was presented against the respondents in the court for their trial. Finding prima-facie case under Section 306 of the Indian Penal Code against the respondents, they were charge-sheeted. The respondents pleaded not guilty and claimed trial. To prove its case, the prosecution examined its witnesses and at the end of the trial, the respondents were acquitted, on the grounds that there was no evidence of abetment of suicide caused by the respondents and the letters Ex.P1 to P6 were not proved to be in the hands of the deceased. DW-1 Sakshi Sharma the daughter of the deceased had specifically stated that the relations between her deceased mother and father were very cordial. The acquittal of the respondents has been assailed by the State in this appeal, on the ground that the learned trial court did not correctly appreciate the evidence on record. According to Shri P.K. Sharma, learned Additional Advocate General, duly assisted by Mr. P.M. Negi, learned Deputy Advocate General, there are grounds to convert the acquittal into conviction if the evidence of the father Om Parkash (PW2) and his brother Ram Kumar (PW4) are properly appreciated. In the instant case, the prosecution has mainly relied upon the statements of PW2 Shri Om Parkash and PW4 Ram Kumar, the father and the uncle respectively and they had 5 produced some letters (Exts.P1 to P6) purported to have been written by deceased to PW2. Om Parkash PW2 has stated that Virender Kumar, respondent was in the habit of squandering the money in purchasing the shares and lottery tickets which brought him to utmost misery. Whenever, he was in the need of money, he harassed Neelam Sharma and demanded money from her. He also raised loans from the financial brokers to satisfy his aforesaid vices. He had even sold the ornaments of his wife and plot at Panchkula. When he was transferred to Belgaon in the year 1997, he was under heavy debts. He also sold his household and dowry articles of Neelam Sharma. He had visited his house at Yamuna Nagar alongwith his family and at the request of the deceased, the amount of Rs.10,000/- in cash and a bank draft of Rs.8,000/- to facilitate his joining at Belgaon was given to him, but still he could not manage his monetary affairs and started giving beatings to Neelam Sharma to bring more money. Again he had sent Rs.10,000/- in the name of Virender Kumar Sharma through Bank Draft to Belgaon at the request of Neelam. His Company recommended his posting at Libiya. Then he again approached him for money and he paid Rs.50,000/- through his wife and also paid Rs.5,000/- when he stayed at Yamuna Nagar on his way to Delhi while going to Libiya. He further stated that he left the job at Libiya and returned to Nahan and started Aggarbati business. Thereafter, he insisted upon 6 Neelam to arrange more money. She had sent a letter and after about one month, she visited him and complained about the harassment being meted out to her by the respondents. He reported the matter to police, but it was dropped on the undertaking of the respondent Virender Kumar on his assurance to keep the deceased well, but he did not improve. On 9.11.1999, Neelam Sharma contracted him on telephone. He enquired about her well being, but he could not hear her vice well. On 9.11.1999, respondent Nisha informed him telephonically at 6.30 p.m. that the condition of Neelam Sharma was unwell and she was hospitalized. He reached there. He made some inquiry, he was told that she started vomiting at 4 p.m. and then she was taken to the hospital around 6 p.m. Police informed him that she had expired. Lalita, the mother of the respondent Virender Kumar informed that Neelam had died a natural death. In the post-mortem, no foul play was detected. Thus she was cremated with his consent. When he came to know on 10.11.1999 about the report of chemical examiner, he suspected that Neelam had committed suicide, as she was being harassed by the respondents to bring more money. In his cross-examination, he has stated that during the posting of Virender Kumar Sharma at Ludhiana and also at Belgaon, his wife and children were residing with him. He further stated that neither he nor his daughter Neelam were happy in going to Libiya by Virender Kumar as he entertained 7 a doubt that he might stay there permanently. He also stated that both his daughters were admitted in the public school at Nahan by Virender Kumar. According to him, he had paid Rs.50,000/- at the instance of his daughter, with a view that she may stay at Nahan when Virender Kumar would leave for Libiya. He did not get recorded in the FIR that his daughter Neelam had written the letter demanding Rs.5 Lacs to start the business of Aggarbati by Virender Kumar Sharma. He also did not give the reference of letters Exts.P1 to P7 in the FIR, though according to him these letters were taken by the police into their possession on the same day. On the day of the alleged incident when Neelam Sharma is alleged to have consumed poison, both of her daughters were present in the house. He also admitted that he alongwith his wife had visited the house of Virender Kumar Sharma at Belgaon where they stayed for three nights. His daughter Neelam was a graduate and was having religious bent of mind. She used to help her daughters in the studies. It is important to note that after the death of Neelam, he took her both daughters to Yamuna Nagar and during the stay for about ¾ days he had enquired about the death of Neelam Sharma. Had there been some hanky-panky, they would have revealed to him everything but there is nothing on record to show that the daughters of the deceased had disclosed anything adverse against the respondents to him. 8 PW-4 Ram Kumar, the brother of Om Parkash has stated that he had never visited Neelam at Nahan.On 10.12.1999, he had accompanied his brother Om Parkash to Nahan and produced the letters aforesaid, which were taken into possession by the police. Dr. Peter Desouza (PW1), a local private medical practitioner has stated that on 9.11.1999 at about 5.15 p.m., the respondent Dinesh Kumar, brother of Virender Kumar respondent informed him that his sister-in-law was not well and at his instance he visited his house and checked-up Neelam. She was gasping. Her heart beats were irregular. He advised Dinesh Kumar to take her to the hospital immediately. Thereafter in his presence, Dinesh Kumar carried her in his Lap and took her to the hospital on his scooter. According to Inspector Kishan Singh (PW7) Virender Kumar and Luxmi alias Nisha both were not present in the house. Neelam had died the same day in the hospital. PW3 Dr.Sanjay Sharma was a member of the Board, who had conducted the autopsy of the dead body on 10.11.1999. There was no mark of violence on her dead body. They reserved opinion till the receipt of the report of viscera from the Chemical Examiner. The chemical report revealed that it contained orgeno-phosphorus. The Doctor gave the final opinion that she had died due to asphyxia, due to the orgeno- phosphorus poison, which according to PW3 is also used as a food preservative. 9 According to PW7 Inspector Kishan Singh, Investigating Officer, had also enquired about the nature and conduct of the respondents from the neighbours residing on the ground floor of this building where deceased used to reside with her husband, but none of them told him about any alleged harassment caused to Neelam. On the critical examination of the above evidence, we do find that Virender Kumar respondent had always remained in financial crisis, due to his vices. His wife was a sensitive lady and she wanted that her husband should bail out from the financial crisis and sought help from her parents. But it is no where in the evidence that Virender Kumar or his family members had been demanding money as dowry or that at any point of time they had made a situation for her to commit the suicide. The statement of her father regarding the alleged beatings and harassment is an improvement in his earliest version and is an afterthought. However, he had been helping his daughter financially as and when she had demanded money. The letters are not proved to be in her hand. Ex.P6 is an inland letter dated 27.9.1998 sent by the deceased to her father Om Parkash (PW2). Apparently, handwriting and signatures are not matching with the other letters Ext.P1 to P6, nor those were sent for comparison to the handwriting expert of questioned documents by the police. Further the source of the paper of letter Ex.P2 dated 4.6.1994 written from Ludhiana and Ex.P7 admitted to have been 10 written by Virender Kumar on 10.9.1998 at Yamuna Nagar, when he had visited PW2 is the same. If the pad from which these papers were taken, was at Yamuna Nagar in the year 1998 in the house of her parents, then it cannot be said that it was also available to the deceased at Ludhiana in the house of deceased in the year 1994 or vice-versa. Further, the perusal of letters Exts.P1 to P6 does not reveal anything about the cruelty as alleged. Though, it is apparent that Virender Kumar and his wife Neelam Sharma were always in the dire need of money because of the habit of Virender Kumar, as stated above, the deceased had approached her parents to manage the financial affairs. There is no correspondence after 1998 exchanged by Neelam Sharma with her parents which could suggest that even after the year 1998 their financial position did not improve and because of the bad habits of Virender Kumar, he had tortured her to bring more money. It is also significant to note that there is no reference of these letters in the FIR. Had these letters been in the possession of the complainant at the time of lodging the FIR, its reference could not have been avoided in the complaint Ex.PA. Further for about a month after the death of Neelam Sharma, PW2 did not entertain any doubt about her death nor any complaint of any mal-treatment was ever lodged. Though PW2 Om Parkash has stated of having lodged a complaint earlier which ended in compromise, but there is nothing to substantiate his version. From the circumstances aforesaid, it appears that 11 PW2 was prompted to file a complaint against the respondents only on coming to know that Neelam Sharma had died by consuming poison. The statement of Sakshi Sharma (DW1) the daughter of the deceased whose statement was also recorded by the police under Section 161 of Cr.P.C. on 11.11.1999 even before lodging the FIR is worth noting and assumes the importance. She has testified on oath about the cordial relations between her parents. She has specifically stated that the deceased was never given any beatings or harassed by her father. This fact finds corroboration from the statement of PW2 Om Parkash as he immediately after the death of Neelam had taken both the daughters of the deceased to Yamuna Nagar where they stayed for about 2/3 days. According to him, he had enquired from them about the cause of death, which means that there was nothing which could even give rise to any suspicion. Thus, on culling the evidence on record, our conclusion is that though Smt. Neelam Sharma had died by consuming the poison on 9.11.1999 but none of the respondents have been proved to have abetted the deceased to commit suicide as alleged. The act and conduct of the respondents who were present in the house at the time of the alleged occurrence appears to be above board. The letter Ex.P7, admitted to have been written by respondent Virender Kumar, does not show anything else then handing over the entire salary to Neelam Sharma and also not to commit any mistake in future. 12 As a sequel of above discussion, we find that the findings of the learned trial court recording the acquittal of the respondents are borne out from the record. The prosecution could not prove its case beyond a reasonable doubt. There is no perversity in the impugned judgment. Accordingly, we find no merit in the appeal, it is dismissed. The respondents are discharged of their bail bonds entered upon by them at any time during the proceedings of the case. Send down the records. (Surjit Singh) Judge May 08, 2008. (Surinder Singh) (Pds) Judge.