Whether reporters of the local papers may be allowed to see the judgment? Yes. IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. Criminal Appeal No.392 of 2008 With Criminal Appeal No.640 of 2008. Judgment reserved on: 17.11.2009. Date of decision: November 24th, 2009. 1. Cr.Appeal No.392 of 2008. Bholi @ Veena and another. ….Appellants. Vs. State of H.P. … Respondent. For the appellants : Mr. Anup Chitkara, Advocate and Ms. Nidhi Chawla, Advocate. For the respondent : Mr. P.M. Negi, Deputy Advocate General with Mr. Ramesh Thakur, Asstt. Advocate General. 2. Cr. Appeal No.640 of 2008. State of H.P. … Appellant. Vs. Rahul Gupta and another. … Respondents. For the appellant : Mr. P.M. Negi, Deputy Advocate General with Mr. Ramesh Thakur, Asstt. Advocate General. For the respondents : Mr. Anup Chitkara, Advocate and Ms. Nidhi Chawla, Advocate. Coram The Hon’ble Mr. Justice Surjit Singh, Judge. The Hon’ble Mr. Justice Surinder Singh, Judge. Whether approved for reporting? Yes. Surinder Singh, Judge: The challenge in Cr. Appeal No.392 of 2008, filed by the convicts, is to the judgment of conviction dated 18.6.2008, of learned Additional Sessions Judge (Fast Track Court), Chamba, whereby the appellants have been convicted under Section 304- B read with Section 34 of the Indian Penal Code and sentenced - 2 - to undergo rigorous imprisonment for a period of seven years and to pay fine of Rs.20,000/- each, in default of payment of fine, to further undergo rigorous imprisonment for a period of six months each, whereas, the State has filed Cr. Appeal No.640 of 2008, for seeking enhancement. Prosecution case, in brief, is as under:- PW3 Shyam Lal, resident of Pathankot was running a spare parts shop at Damtal. Jyoti (deceased) was one of his daughters. She was married to appellant Rahul Gupta, the son of appellant Bholi @ Veena, in village “Chudi”, in the remote area of District Chamba in April, 2003. Appellant Rahul Gupta was running a shop at village Dharwala about 1½ K.M. away from his residence at ‘Chudi’. Jyoti had done her M.A. from Pathankot and B.Ed. from Kuthua (J&K), whereas appellant was simply a matriculate. During this wedlock, Jyoti gave birth to a female child. It is alleged that after sometime of her marriage, Jyoti aforesaid visited her parental house, she informed her parents that her husband had been maltreating her at the behest of his mother Bholi for bringing less dowry. Her father Shyam Lal reprimanded his son-in-law Rahul and told him that this was not good on his part, but even thereafter, he did not mend his ways. To this effect, she had been making complaints to her mother (PW8) and told her that on account of the above conduct of the appellants, she was apprehending danger to her life. She further - 3 - disclosed that appellant Rahul was interested to marry another lady. On 29th September, 2004, at about 5.20 a.m., Jyoti was taken to hospital with 100% burn injuries, where she was examined by PW1 Dr. B.S. Rana. She was in semi-conscious condition. Doctor noticed that her body was smelling kerosene oil. There were deep burn injuries all over her body with skin peeled off over the upper and lower limbs and upper back. Eye brows, eye lashes and hair over the middle of scalp burnt and curled up. Her face was swollen. The body was naked i.e. without cloth except underwear, which was also burnt. A bed- sheet was used to cover her body. She was unfit to make her statement. She was admitted in the hospital and sent for her surgery. The doctor issued Medico Legal Certificate Ex.PA to this effect, but could not survive and ultimately, succumbed to her injuries on the same day and later part of the day, autopsy of the dead body was conducted by a team of doctors. PW3 Shyam Lal was informed by PW11 Smt. Darshana Mahajan that Jyoti had a fall from ‘Kotha’ as informed by PW10 Veena Mahajan and sustained serious injuries, therefore, he should reach Chamba. Shyam Lal alongwith his wife Bimla (PW8) and other family members reached Chamba and came to know that his daughter was dead and the dead body was lying in the mortuary of the hospital. The appellant, his parents and his Taya told him that she died due to bursting of the Patromax. Shyam Lal went to - 4 - mortuary and found that the dead body was having burn injuries and it was emitting smell of kerosene oil. He suspected both the appellants in causing the murder of his daughter, thus informed police. Police reached the Zonal hospital, Chamba, where Shyam Lal, father of the deceased got recorded his statement Ex.PC, under Section 154 of the Code of Criminal Procedure, which was sent for registration of the case, on the basis of which PW7 HC Rajinder Kumar, registered FIR Ex.PM. A board comprising of three doctors, i.e. PW2 Dr. Vishal Mahajan, Dr. Rakesh Verma and Dr. Vinod Pathak was constituted, on 29th September, 2004, itself by the Medical Superintendent of the hospital, to conduct the postmortem of the dead body and on examining the dead body by the medical board, the following observations were made:- “Body of adult naked female subject in Rigormortis present all over. Pugilistic attitude present Eyes closed. Mouth closed. Cornea hazy. Conjunctiva red lids edematous, eyelash and eyebrows burnt, hair on front of scalp show singeing. Hair plate also burnt. 100% deep burns involving all body. Blisters and peeling of skin in extremities. Red reaction was present underneath the burnt surface. At places, the skin was blackened. All public hairs burnt. A plastic envelope with burnt underclothes blackened, burnt - 5 - skin flap sent for analysis. Burn nose pin, burn ring gold and one Kada steel handed to the police”. After examination, the Board opined that Smt. Jyoti died due to 100% burns leading to shock and death. Viscera was preserved and sent for chemical test. No poison was found therein.” As per report of the Chemical Examiner, kerosene oil was found in the burn injuries. The doctors issued the postmortem report Ex.PB, duly signed by them. MHC Rajinder Kumar handed over the file to PW20 ASI Dharam Singh, for carrying out the investigation. On 30.9.2004, he visited the spot and prepared site plan Ex.PQ and took into possession gas run Patromax, Jeri-cane of kerosene oil etc. vide memos Ex.PD to PF and recorded the statements of the witnesses. Police also took into possession one glass of steel, match box, used match sticks, Chappel, one broom, one towel, one Jug lying on the spot. Investigation revealed that appellant Bholi was present on the ground floor in her house at the time of incident and the deceased put her on fire in the open verandah, in front of her bed room. PW19 SI Kushal Chand, received the file for further investigation on 3rd October, 2004. He also visited the spot on 5th October, 2004. Investigation also revealed that Bholi Devi and maid-servant Anju cleaned the floor with broom and destroyed the evidence. Thus, appellants were arrested alongwith maid servant Anju under Sections 304-B and 201 read with Section 34 - 6 - of the Indian Penal Code. Challan against them was presented in the court for their trial, under the aforesaid sections. Finding a prima-facie case against the appellants, they were charge sheeted for the offences aforesaid. Appellants and the co-accused Anju abjured the guilt and claimed trial. To prove its case, prosecution examined its witnesses and the appellants were also examined under Section 313 Cr.P.C. They denied the circumstances which were found attendant upon them. The trend of the cross-examination of the prosecution witnesses reveals that the defence of the appellants was that the appellant Rahul Gupta was simply matriculate, whereas deceased was M.A. B.Ed. The deceased was not having any company and their residence was in a small and remote village in District Chamba. The appellants had assured to shift to Chamba town after constructing a house, which lingered on. The deceased had an ambition to become a teacher. She felt depressed and ultimately, committed suicide. The allegations of demand of dowry and maltreatment were false. The learned trial Court after scanning the evidence did not find any evidence worth convincing against accused Anju, a maid servant, as such, she was acquitted, however, relying upon the statements of the prosecution witnesses qua appellants, they were convicted and sentenced, which has been challenged in this appeal. We have heard the learned counsel for the parties and have carefully reappraised the evidence on record. - 7 - Scrutiny of statements of PW3 Shyam Lal, his wife PW8 Bimla Rani, PW10 Veena Mahajan, PW11 Darshana Mahajan wife of the brother-in-law of PW3 Shyam Lal and PW9 Nek Ram a neighbour of appellants, are important to come to a right conclusion, to establish the connection of appellants with the offences charged. PW3 Shyam Lal stated that after 2/3 months of her marriage, Jyoti visited him and complained against her mother- in-law appellant Bholi that she is coercing her for bringing less dowry and also told him that she was being maltreated in the matrimonial home by her husband appellant Rahul Gupta at the instance of his mother Bholi, for bringing less dowry. He also stated that he had provided the dowry items according to his capacity and told the appellants that he was unable to meet frequently the demand of dowry. He also told appellant Rahul and deceased Jyoti to compromise with the situation as he has two other daughters to marry. Then they left his house. He also stated that as and when Jyoti came to his house, she complained about the maltreatment meted out by the accused to her. He alleged that she was being harassed intentionally so that she should die and Rahul could remarry. According to him, when he received the telephonic message from the wife of his sister-in- law about her having fallen down from the roof top and was serious, he rushed to Chamba alongwith his wife and son Rajesh Kumar. On reaching there, he came to know that his daughter Jyoti had died. Father of accused Rahul, Surinder Kumar was - 8 - also present there alongwith his Taya Raj Kumar. He enquired from them as to what had happened to her. Appellant Rahul told him that the gas filled Petromax got burst, which resulted into fire. He did not believe them and went to see the dead body where it was kept in the hospital and noticed that her body was completely burnt. It smelt like kerosene oil. The version given by the appellant was found false, thus he reported the matter to police and his statement Ex.PC was recorded. He stated that appellant Bholi was not happy with the birth of the female child. She used to say that Jyoti and female child had become a problem for them. He further stated that appellant Rahul was having a vehicle and whenever it required repairs, he used to send it alongwith his driver to him at Pathankot for getting spare parts from his shop and then he (PW3) had been bearing all the expenses of the repair, which were never paid by appellant Rahul. He also stated that once all the tyres of his vehicle were replaced for Rs.10,000/-, he made the part payment and the balance money was paid by Rahul after the death of his daughter to the dealer from whom the tyres were purchased. The cross-examination of this witness needs to be noted. He stated that when the talks about the marriage of Jyoti with Rahul were going on, the appellants did not raise any demand of dowry, because he had assured to provide the dowry articles according to his capacity. He further stated that Jytoi was M.A. B.Ed, and did her graduation from Pathankot and B.Ed. from Kathua in Jammu & Kashmir, which is a district - 9 - headquarter, whereas, Rahul was simply matriculate. He further stated that Jyoti on her visit to the parental home told him that the accused had demanded cash, Scooter and other things. On this issue, he spoke to appellant Bholi and requested not to harass his daughter. This was an improved version. He was also confronted with his statement Ex.PC that she died of bursting of the petromax which fact was not mentioned. He further stated that he did not get recorded in the said statement that he went to the dead house as he did not believe the version given by Rahul and his father, further that the accused used to say that they would kill Jyoti and throw her dead body in the river and also that the appellant Bholi was not happy because of the birth of a female child. He did not produce any record of repair of the vehicle of appellant, which was used to be got repaired by him. Even this fact also did not find mentioned in the FIR or his statement Ex.PC. He did not know if appellant Rahul and his father used to go for their shop in Dharwala daily in the morning at 6 a.m. and return during the night. He categorically stated that Jyoti wanted to become teacher after doing her B.Ed, but she could not get any job. He also stated that he did not know if Jyoti would have lived in Pathankot or Kathua, the chances of her employment were bright as compared to village Chudi where she was residing with her husband. He also admitted that, Jyoti had no society in Chudi, but added that appellants had not allowed her to go out of house, which fact was also disclosed by him for the first time in the Court. He also stated that about the alleged - 10 - ill-treatment by the appellant, he did not approach Mahajan Sabha with his grievance. He specifically admitted that in the month of September, 2004, his son Rajesh alongwith his friends had visited ‘Mani-Mahesh’ and on his way back, stayed in the house of the deceased at village Chudi. PW8 Bimla Rani, mother of the deceased and wife of Shyam Lal (PW3) in cross-examination stated different from his husband that the appellants had demanded dowry after the engagement on 6.7.2002 of her daughter with Rahul Gupta, whereas, her husband stated that no such demand was ever raised by the appellants or any other family members at that time. She also gave altogether a different version about the dowry articles. She stated that the appellants had demanded Rs.1 lacs in cash from them, so that they could build a house. Further the appellants remarked that they were not provided a Scooter in the marriage. She stated that appellants were pressing hard to provide scooter to Rahul appellant. She also stated that her statement was never recorded by the police. No police official had enquired from her about this case. Even she denied having given her statement under Section 161 Cr.P.C. to the police on 11th December, 2004. She admitted that village “Chudi” is a small place and the shop of appellant was located at 1½ K.m. away. She also stated that Rahul used to visit his house 2/3 times daily from his shop, as disclosed by her daughter. She further stated that 15 days after the marriage, Jyoti had visited them and told about the demand of cash and scooter being - 11 - raised by the appellants and she did not tell this fact to the father of the appellant Rahul. She further stated that she asked her sister Veena (PW10), who lived in Chamba town to visit the house of appellant as to why they were demanding the dowry etc., but she did not visit them and in turn told her that it was their own family affair and decide themselves what to do. However, she admitted that her son visited ‘Mani-Mahesh’ alongwith appellant Rahul, in the month of September, 2004 and on his way back, he had stayed in the house of her sister in village “Chudi”. According to her, on his return, he informed them that Rahul appellant was not keeping his sister well, and she was being ill-treated. Even on this complaint, they did not visit the house of appellants. She denied that Jyoti was happy in the small village at Chudi, as she was not having any company and further that she used to grumble that her life was spoiled by marrying her at such a place and due to this reason, she committed suicide. Significantly, to lend strength to the version of the parents of deceased, their son Rajesh was an important witness, to disclose as to how he inferred that the deceased was ill- treated by the appellants in his presence. His non-examination is fatal to the prosecution, in the circumstances stated above. PW10 Veena Mahajan is a sister of Bimla Rani living in Chamba Town. She gave story that one month earlier to her death, Jyoti had met her and complained that the appellants had been maltreating her for bringing less dowry and they were - 12 - demanding cash and complained to her that Bholi used to instigate his son Rahul to maltreat her. She also stated that after two months of her delivery, she went to her parental house at Pathankot and Jyoti was not ready to come back from the house of her parents. Then her father-in-law and the appellant Rahul went to Pathankot to bring her back. This fact has not been stated by her parents neither in the Court nor in earlier statement Ex.PC by her father. Further she stated that Bholi used to give her a ring at Pathankot that Jyoti should be sent back. She also stated that the appellants had begged to be pardoned that they would not ill-treat her in future. She also stated that on 29th September, 2004 at about 8.30 a.m., one Smt. Meenu, a close relative of the appellants rang her up and informed that she should visit Chamba hospital as Jyoti had a fall from a ‘Kotha’. But no information was given to her by the appellants. Thereafter she rang-up to the sister-in-law Darshana (PW11), who was living at Model Town Pathankot and told her to inform the parents of Jyoti. She visited hospital and saw the dead body of Jyoti there. According to her, Jyoti was fed up because of the misbehaviour of her in-laws. In cross-examination, she stated that after 2-3 months of her marriage, Jyoti had visited her place. However, she was never beaten by her husband in her presence. She also stated that she told parents of Jyoti that appellants had demanded cash and other dowry articles. She further stated that Jyoti had visited her 3-4 times and every time, she complained - 13 - against the appellants and she rang-up to her parents 3-4 times, informing them about the demand being raised by the appellants. These facts were not deposed by any of them in the Court. She (PW10) stated that she did not visit village Chudi as it was a private dispute between two families. She was confronted with statement Ex.DA, but there was no mention about the fact that appellants used to demand cash. There was also no mention in her statement that when Jyoti had gone to her parental house after the birth of the female child in the month of March. She stated that, that part of her statement Ex.DA wherein it was mentioned that the caller did not disclose the identity was incorrect. She denied that Jyoti lived happily in the house of the accused for some time after the marriage. This fact was found mentioned in her statement Ex.DA. She also stated that the appellants told them that they would build a house at Chamba town and reside there, but they did not build the house before the marriage as per their undertaking given at the time of engagement. She stated that when PW3 Shyam Lal enquired about it, they told him that they would build the house shortly and till then Jyoti and Rahul would live in the house of his Taya Raj Kumar in Julakhri Mohalla in Chamba Town. She admitted that when she visited hospital, Jyoti had died, she took Rahul in her arms outside the hospital and told him that he was not at fault. According to her, she was not knowing the reality at that time, which fact in view of her above statement cannot be relied upon. The perusal of her statement as a whole, shows that if the facts - 14 - which were stated by her had actually happened then she would not have told Rahul that it was not his fault. Therefore, her statement raises a substantial doubt on her version regarding demand of dowry and ill-treatment. PW11 Smt. Darshana Mahajan, a real maternal aunt of deceased stated that Jyoti was being ill-treated for bringing less dowry and demanded cash, but when she was confronted with her statement Ex.DB, recorded by the police, under Section 161 Cr.P.C. during the investigation, this fact was not at all found mentioned. Then she stated that she did not tell anyone that Jyoti was ill-treated for not bringing the cash and this fact was narrated by her for the first time in the Court. Further the statement of Nek Ram (PW9), a neighbour of appellants needs to be noticed. Although, he did not support the prosecution case, but revealed very important facts which go consistent to the defence version. PW 9 aforesaid is a teacher. He stated that when he was getting ready to go to school, he heard that Jyoti was on fire. He went to the house of the appellants and saw that appellant Rahul and his father shifting Jyoti to hospital in a vehicle. Appellant Bholi had also accompanied them. He also stated that deceased used to visit his family being a neighbour and used to tell him that her parents have spoiled her life by marrying in a small village “Chudi”. She hailed from Pathankot. He also stated that he was also in visiting terms in her house. She was kept nicely by the appellants and appellant Bholi treated her like her own daughter. Further PW4 - 15 - Rinku Ram also stated that the appellants had kept the deceased nicely. He also testified that when Jyoti gave birth to a female child, appellant Bholi had distributed “Ladoos”. His earlier statement recorded by the police under Section 161 Cr.P.C. was not found to be inconsistent to his version made during the trial, therefore, the learned trial Court did not permit the learned Public Prosecutor to cross-examine him and his statement remained unchallenged on record. PW6 Lokinder had seen Jyoti in flames. He stated that he saw a lady was on fire in her verandah. He rushed to her house. Pawan Kumar also joined them. They saw Jyoti was burning and lying on the floor. He covered her with a bed-sheet. Fire was got extinguished by other people present. He did not say anything about the presence of the appellants nor he stated that she raised any cries and that she was got burnt by any of the family members. She also did not supply any reason to finish her life. On the critical examination of the aforesaid evidence, we find that in the earlier statement Ex.PC made by PW3 Shyam Lal, petromax story was not there and it was also not mentioned that the birth of a female child given by the deceased was a problem to the appellants. Further, we did not find any reference with respect to non-payment of amount for the repairs of the vehicle by the appellant Rahul, rather it is proved that the payments were made by Rahul after the death of Jyoti. The allegations of demand of dowry and her ill-treatment by - 16 - appellants as alleged are contradictory