IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA Cr.Appeal No.515 of 2002 Judgment Reserved on: 02.08.2011 Date of decision: 21.10.2011 State of H.P. … … …Appellant Versus Sanjay Kumar & Others … … …Respondents Coram The Hon’ble Mr.Justice R.B. Misra,J. The Hon’ble Mr.Justice Dev Darshan Sud,J. Whether approved for reporting ?1 Yes. For the Appellant: Mr.R.K. Sharma, Senior Additional Advocate General. For the Respondents: Mr.Virender Singh Rathore, Advocate. Per Dev Darshan Sud,J. The State has filed this appeal challenging the judgment of the learned Additional Sessions Judge- (I), Kangra at Dharamshala, dated 22.3.2002 acquitting both the respondents Sanjay and Fullan Devi (son and mother) for offences under Sections 498-A and 306 IPC for causing the death of Lata Devi wife of Sanjay. 2. The prosecution case in brief is that on 17.1.2001 PW-12 ASI Ramesh Chand, who was Incharge, Police Post, Bhawarna, was in the Sub Divisional 1 Whether the reporters of Local Papers may be allowed to see the judgement? Yes. 2 Hospital at Palampur, investigating an accident case, where he received a telephonic message that one woman who was lateron identified as Lata Devi had died after consuming poison. He reached the spot at village Ghanetta and found that she was lying dead on a cot presumably having consumed poison. PW-1 Suti Devi, mother of the deceased, had also reached there. In her statement Ex.PW-1/A she states that she has two daughters and one son, Lata being the younger daughter. She was married to accused Sanjay on 6th August, 2000. It was an arranged marriage. She was treated well for about a month, thereafter the deceased started complaining that her husband Sanjay and mother-in-law Fullan Devi used to maltreat her saying that she is dark coloured and had protruding teeth. She was ugly and is not conversant with any household work. She was not fit to be married to Sanjay who was a handsome boy. The deceased had informed her that both these persons wanted to throw her out of the matrimonial house, so they did not treat her well, did not provide adequate food and clothes etc. She talked to her son-in-law and Fullan Devi and persuaded them not to maltreat the deceased, but they did not pay any heed. Recently, near Lohri both, deceased and her son-in-law, visited them and on this occasion also he had beaten the deceased severely in her presence and when she tried to intervene, he assaulted her also and abused her in the foulest language. On 15.1.2001, the deceased went to 3 her matrimonial house and told her that she is fed up with the abuses and beatings given to her by her husband and mother-in-law, she is not being treated well and in case they paid no heed to her request to desist from this behaviour, she would end up losing her life. On 17.1.2001 at around 10.00 A.M. in the morning she was informed by Om Parkash that Lata was dead and she should immediately go to her house. She then stated that Lata was forced to take this extreme step of ending her life by consuming poison. She requested that appropriate action in accordance with law be taken against the accused. 3. In order to prove its case, the prosecution examined twelve witnesses including PW-1 Suti Devi, PW- 2 Nanak Chand, PW-5 Madho Ram to establish the charges of cruelty and abetment to commit suicide. 4. The learned trial Court, considering the totality of the evidence on record, acquitted both the accused holding that the prosecution had been unable to establish the ingredients of Sections 306 and 498-A IPC. In reaching this conclusion, the learned trial Court considered the entire evidence on record in detail to hold that there were material contradictions in the evidence of the prosecution case which made the prosecution case highly doubtful. 5. Adverting to the evidence on record, we find that Ex.PW-1/A is the complaint made by PW-1 Suti Devi which is the genesis of the entire case. It is on this 4 basis that the FIR Ex.PW-9/A was recorded. In a nutshell, the case of the prosecution was that the deceased was harassed, tormented, beaten and maltreated by the respondents for the reasons that she was dark complexioned, had protruding teeth, was ugly looking and, therefore, was not fit to be married to Sanjay. Adverting to the evidence of PW-1 Suti Devi, we find that in Court she has stated something quite different from what she stated in Ex.PW-1/A. She admits in her examination-in-chief that it was an arranged marriage where both boy and the girl had seen each other, liked each other and thereafter decided to get married. In cross-examination, she admits that the police had made inquiry from the neighbours of the accused who were also present in the marriage and that all of them had stated that they had not seen or heard of any maltreatment being meted out to the deceased. They also informed the police that the deceased was treated with love and care. She then states in her examination-in- chief that dowry demand of one lac rupees was made from her so that the accused could construct his house. She also states that on the last occasion when the deceased met her, she had stated that she was fed up with the maltreatment meted out to her and she would be forced to take the extreme step of ending her life. This infact is the evidence of the prosecution in a nutshell. 5 6. We find that this evidence is not in concord with the statement Ex.PW-1/A, where she nowhere states about the demand of one lac rupees being made. She does not even speak a word about the scuffle which he had with Sanjay on the occasion of Lohri when he was supposed to have beaten up the deceased Lata. She admits that it was an arranged marriage where both the boy and the girl had met each other and it was only thereafter that they agreed to get married. Though she states that on one occasion near Lohri she had seen Sanjay accused beating up the deceased in her presence and about a scuffle with her she is silent, yet in Ex.PW-1/A we do not find that she states anywhere that Lata was beaten up regularly by the accused. In the Court she states that she used to be beaten up by her Jethani (elder sister-in-law) which fact she has not stated in her statement Ex.PW-1/A. She is also silent in her evidence about having a scuffle with Sanjay. 7. PW-2 Nanak Chand is cousin of the deceased. He states that she was treated well by the accused for about a period of two months, whereafter they started beating her up for not bringing money demanded. She was not properly fed and clothed. On Lohri when she came to her parental house, she was beaten up by the respondent-accused. PW-1 Suti Devi intervened and counseled Sanjay accused to be careful in future. He says that a demand of Rs.50,000/- was made from Suti Devi and Rs.50,000/- from him so that she could meet 6 the dowry demand. He was confronted with the statement Ex.DA in which most of the facts, stated in his examination-in-chief, have not been recorded. PW-3 Sushil Kumar, who is a witness to the recovery. PW-4 Dr.Rohit Sharma, conducted the postmortem on Lata Devi and proved on record postmortem report Ex.PW-4/A and after consulting the Chemical Examiner Report Ex.PA, opined that the cause of death was that she was died due to shock caused by oregano-phosphorous insecticide poisoning. PW-5 Madho Ram, another cousin of the deceased, states that deceased was maltreated by the accused as she was dark complexioned and was no match for the accused Sanjay. Most important, he says that on Lohari he had seen the deceased and the accused quarreling. This is the entirety of the evidence. 8. Shri R.K. Sharma, learned Senior Additional Advocate General, submits that the learned trial Court was wrong in concluding that there were material contradictions in the statements of the witnesses. He submits that the witnesses are rustic people and were appearing in the Court after a long period of time and were not expected to depose in the Court like parrots. He submits that the contradictions are not such which go to the core of the case which would render the entire prosecution story as inherently improbable. He places reliance on the decisions of the Supreme Court in Beti Padia vs. State of Orissa, AIR 1981 SC 1163, holding:- 7 “5. Learned counsel appearing for the appellant has pointed some discrepancies in the evidence of P.W.1. In our opinion the discrepancies pointed out are minor and nominal. It may be remembered that P.W.1 was an unsophisticated Adivasi woman. The High Court was justified in accepting her evidence. We do not find any valid reason to differ with the High Court.” (p.1164) 9. He urges that the evidence of PW-1 Suti Devi cannot be ignored for the reasons that she was a rustic lady and some discrepancies were bound to occur. We have given our careful and anxious consideration to the case urged by the State. The principles of law urged, namely, (a) that minor discrepancies are bound to occur in evidence and such discrepancies are not fatal to the prosecution case; (b) that it is only those discrepancies which destroy the core of the prosecution allegations that the evidence of the witness is to be rejected; (c) that the evidence of rustic people cannot be considered with that mathematical perception as in the case of other witnesses are settled by a long series of decisions. 10. In Munshi Prasad and Others vs. State of Bihar, (2002)1 SCC 351, the Supreme Court holds:- “10. … … … … … … … … … …Incidentally, be it noted that while appreciating the evidence of a witness, minor discrepancies on trivial matters without affecting the 8 core of the prosecution case, ought not to prompt the court to reject evidence in its entirety. If the general tenor of the evidence given by the witness and the trial court upon appreciation of evidence forms opinion about the credibility thereof, in the normal circumstances the appellate court would not be justified to review it once again without justifiable reasons. It is the totality of the situation, which has to be taken note of, and we do not see any justification to pass a contra note, as well, on perusal of the evidence on record. In this context reference may be made to two decisions of this Court. The first being the State of U.P. v. M.K. Anthony, (1985)1 SCC 505 as also a later one in the case of Leela Ram v. State of Haryana (1999)9 SCC 525. Needless to record that difference in some minor detail, which does not otherwise affect the core of the prosecution case, may be there but that by itself would not prompt the court to reject the evidence on minor variations and discrepancies. In Leela Ram, (1999)9 SCC 525, this Court observed in para 10 of the Report: (SCC pp.532-33) “10. * * * * "24. When an eyewitness is examined at length it is quite possible for him to make some discrepancies. No true witness can possibly escape from making some discrepant detail. Perhaps an untrue witness who is well tutored can successfully make his testimony totally non-discrepant. But courts should bear in mind that it is only when discrepancies in the evidence of a 9 witness are so incompatible with the credibility of his version that the court is justified in jettisoning his evidence. But too serious a view to be adopted on mere variations falling in the narration of an incident (either as between the evidence of two witnesses or as between two statements of the same witness) is an unrealistic approach for judicial scrutiny." This Court further observed: (SCC pp.656-57, paras 25-27) "25. It is a common practice in trial courts to make out contradictions from the previous statement of a witness for confronting him during cross-examination. Merely because there is inconsistency in evidence it is not sufficient to impair the credit of the witness. No doubt section 155 of the Evidence Act provides scope for impeaching the credit of a witness by proof of an inconsistent former statement. But a reading of the section would indicate that all inconsistent statements are not sufficient to impeach the credit of the witness. The material portion of the section is extracted below: "155. Impeaching credit of witness- The credit of a witness may be impeached in the following ways by the adverse party, or with the consent of the court, by the party who calls him- (1)-(2) * * * (3) by proof of former statements inconsistent with any part of his evidence which is liable to be contradicted;' 10 26. A former statement though seemingly inconsistent with the evidence need not necessarily be sufficient to amount to contradiction. Only such of the inconsistent statement which is liable to be 'contradicted' would affect the credit of the witness. Section 145 of the Evidence Act also enables the cross- examiner to use any former statement of the witness, but it cautions that if it is intended to 'contradict' the witness the cross-examiner is enjoined to comply with the formality prescribed therein. Section 162 of Code also permits the cross- examiner to use the previous statement of the witness (recorded under section 161 of the Code) for the only limited purpose i.e. to 'contradict' the witness. 27. To contradict a witness, therefore, must be to discredit the particular version of the witness. Unless the former statement has the potency to discredit the present statement, even if the latter is at variance with the former to some extent it would not be helpful to contradict that witness (vide Tahsildar Singh v. State of U.P., AIR 1959 SC 1012) … … … … … … … …" (pp.362-363) 11. The same principle finds reiteration in Krishna Mochi and Others vs. State of Bihar, (2002)6 SCC 81, where the Court holds that it is the quality of the evidence which is to be considered and evaluated. 11 12. Lastly, we may also refer to the decision in Dani Singh and Others vs. State of Bihar, (2004)13 SCC 203, holding:- “8. Though the evidence of P.Ws. 1 and 2 were attacked on the ground that it was partisan, we find that nothing has been brought on record to cast any doubt on the veracity of their statement. Merely because the witnesses are related or friendly with the deceased, that will not be a ground to discard their evidence. The only thing the Court is required to do is to carefully scrutinise the evidence and find out if there is scope for taking a view about false implication. Further since there are some exaggerations or minor discrepancies, that would not be sufficient to cast doubt on the evidence.” (p.210) (Emphasis supplied) 13. Applying these principles to the facts of the present case, what we find is that the Ex.PW-1/A only states that the deceased was maltreated/tormented for the reasons that she was not good looking, was dark complexioned and had protruding teeth, was ugly and unfit to be married with the first accused. Even accepting these allegations on their face value, we find that without adverting to the cross-examination of PW-1 Suti Devi she clearly states in her examination- in-chief that both the deceased and accused Sanjay had 12 met each other prior to the marriage when they were engaged, talked to each other, liked each other and it was thereafter that the marriage was arranged between them. In these circumstances, we cannot comprehend as to why the deceased was maltreated for being ugly and not good looking. Then in her evidence, in Court she states that a demand of dowry for Rs.one lac was made which is stated to be corroborated by the other two witnesses PW-2 Nanak Chand and PW-5 Madho Ram. We find that we cannot accept this version of the witness for the reasons that she never made this complaint to anybody prior to the death of Lata or even at the first instance/chance, which she got, when Ex.PW-1/A was recorded. This changes the entire complexion of the case where maltreatment is subject matter not only of the looks of the deceased but also of the demand for dowry. We also find that in Court this witness states that the sister-in-law (Jethani) of the deceased used to maltreat her because of her ugly looks, which fact has not been stated by her in her statement Ex.PW-1/A. The learned trial Court, holds that it is in evidence that Sanjay Kumar accused never had an elder brother and therefore, there could be no `Jethani’ in existence. These contradictions are not minor but go to the core of the case. Maltreatment for demand of dowry is different from maltreatment/beating on account of looks where she was despised for being ugly etc. 13 14. We find that the other two witnesses also state a version different than that which has been stated in Ex.PW-1/A. We also find that PW-1 Suti Devi admits that an inquiry was conducted by the police from the neighbours of the deceased who had stated unanimously that they never heard about any maltreatment meted out to the deceased and that she used to be treated normally and with care, love and affection. This admission by PW-1 Suti Devi is important and pivotal to the case. 15. We now advert to the law under Section 498-A and 306 IPC. To say that the ingredients which constitute cruelty as defined by the explanation of Section 498-A are not established on the record of the case would be stating the obvious. The explanation reads:- “498-A. … … … … … … Explanation.-For the purposes of this section, `cruelty’ means- (a) any willful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman; or (b) harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure 14 by her or any person related to her to meet demand.” 16. We find that none of the facts purportedly brought on the record of the case prove any of the ingredients as required. 17. In these circumstances, we hold that the learned trial Court is right in holding that the offences have not been established by the evidence on the record. This appeal is, therefore, dismissed. Bail bonds furnished by the respondents-accused are discharged. (R.B. Misra) Judge October 21, 2011. (Dev Darshan Sud) (aks) Judge