IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.A No.485 of 2005 Decided on : June 30, 2008 Sanjeev Kumar …Appellant. Versus State of H.P. …Respondent. Coram The Hon’ble Mr. Justice Surjit Singh, Judge. The Hon’ble Mr. Justice Surinder Singh, Judge. Whether approved for reporting?1 Yes. For the Appellant : Mr. M.S. Guleria, Advocate. For the Respondent : Mr. P.K. Sharma, Additional Advocate General, with Mr. P.M. Negi, Deputy Advocate General. Surjit Singh, Judge( Oral ) Appellant has preferred this appeal against the judgment of Sessions Court, whereby he has been convicted of offences, punishable under Sections 498-A and 304-B of the Indian Penal Code, and sentenced to undergo rigorous imprisonment for two years and to pay a fine of Rs.5,000/-, in respect of offence punishable under Section 498-A of the Indian Penal Code; and to undergo rigorous imprisonment for ten years and to pay a fine of Rs.10,000/-, in respect of offence punishable under Section 304-B of the Indian Penal Code. He has assailed both the conviction and the sentences. 2. Prosecution case may be summed up thus. Deceased Punita Devi was the youngest of five sisters, whose Whether reporters of the local papers may be allowed to see the judgment? …2… parents had died long before. After the death of their parents, they were taken care of by their stepmother, PW-3 Nikki Devi. Punita’s eldest sister was married about 20 years prior to her marriage with PW-4 Braham Dutt, who is resident of village Hambot. Mother’s mother of the appellant was also resident of village Hambot. That lady had only one issue, i.e. the mother of the appellant. So, the appellant used to reside in village Hambot, his mother’s mother place. PW-2 Asha Devi, the eldest sister of the deceased, knew the appellant and his parents. On being approached by one Manohar Lal, PW-2 Asha Devi persuaded her stepmother, PW-3 Nikki Devi, to marry off the deceased to the appellant. Ultimately, marriage between the appellant and the deceased was solemnized on 24th October, 2001. Immediately after the marriage, appellant expressed dissatisfaction over the dowry given in marriage. He allegedly told PW-4 Braham Dutt and PW-8 Rajesh Kumar, husbands of two sisters of the deceased, and PW-7 Jeet Ram, a cousin of the deceased, that he was not looking for dowry articles but cash, in lieu of the value of those articles. He started harassing and subjecting the deceased to cruelty to pressurize her to bring money from her stepmother to enable him to buy a car. Deceased also had some landed property in her name and the appellant put pressure on her to sell out that property and hand over the sale proceeds to him so that he could buy a car. 3. On 23rd March, 2002, deceased consumed phosphide poison. She was taken to Community Health Centre, Bharari. PW-2 Asha Devi accompanied the deceased and the appellant …3… and his family members to the said Community Health Centre at Bharari. After some time, PW-1 Trishna Kumari, another sister of the deceased, also reached the Community Health Centre, Bharari, from where the deceased was taken to Zonal Hospital, Hamirpur, where she died at 7 p.m. Deceased, as per testimony of PW-1 Trishna Kumari, was conscious and was in a position to make statement by gestures. However, no statement of the deceased is there. PW-1 Trishna Kumari stated that she asked the deceased why she had consumed poison, but she said nothing and was only crying. 4. Police was informed. PW-11 Prithipal Singh, ASI of Police Station Bharari, went to Zonal Hospital, Hamirpur. He conducted inquest and prepared report Ex. PW-11/A. As per inquest report, appellant told that on the previous night there was a blank telephonic call and that in the past too blank calls used to be there and that when he asked his wife (the deceased) as to who had been making blank calls at odd hours of the night, she kept quiet and next morning he went to telephone exchange at village Hatwar after telling his wife that he was going to find out as to who was making blank calls and on return from the exchange he found that the deceased had consumed poison and then he rushed her to the hospital at Bharari. After the preparation of the inquest report, PW-1 Trishna Kumari made a statement, under Section 154 of the Code of Criminal Procedure, Ex. PW-1/A, in which she got recorded that the deceased was harassed and subjected to cruelty by the appellant to pressurize her to bring money from her stepmother for purchase of a gadi …4… (vehicle) and that fed-up with the ill-treatment she committed suicide. 5. Prosecution examined the abovenamed two sisters, the stepmother, two brothers-in-law of the deceased (hushands of two sisters of the deceased), a cousin of the deceased and an uncle (Mama) of the deceased to bring the charge home to the appellant. All of them stated that the deceased used to be subjected to harassment and cruelty, as a pressure tactic, to bring money from her stepmother for the purchase of car. Trial Court believed their testimony and convicted and sentenced the appellant, as aforesaid. 6. We have been taken through the entire evidence adduced by the prosecution as also the appellant. 7. As already noticed, the plea taken by the appellant is that someone used to make calls to the deceased and that whenever he happened to be at home and picked up the receiver, the person making the call did not respond and that on the night preceding the incident also there was a telephonic call around 1 a.m. and that next day when he went to the telephone exchange at Hatwar, telling his wife that he would find who had been making the calls, the deceased got upset and on return he found that she had consumed some poisonous substance. 8. We do find, even from prosecution’s own evidence that the plea taken by the appellant may not be improbable. Not only this, some contradictions, which are there in the testimony of the witnesses of the prosecution, improbabilize the allegations …5… of the prosecution regarding the harassment and cruelty of the deceased by the appellant, on account of dowry demand. 9. It is the case of the prosecution itself that the house of PW-2 Asha Devi is at a distance of just 20 or 30 metres from the house of the Nani (mother’s mother) of the appellant where he alongwith the deceased used to live. PW-2 Asha Devi has though stated that the deceased used to complain that she was harassed and subjected to beatings, on account of the demand of money for purchase of vehicle, she did not say that she saw the appellant giving beating to the deceased with her own eyes. This is despite the fact that she is not only the resident of the same village, where the deceased and the appellant lived, but her house is situated, per her own deposition, at a very short distance of 20-25 metres. The fact that she never saw the deceased being subjected to harassment or cruelty is a strong circumstance, indicating that the story put forward by the prosecution cannot be true. 10. It has been admitted by PW-2 Asha Devi that the appellant and his father are gentlemen and it was because of this reason that she had suggested for matrimonial alliance between the deceased and the appellant to her stepmother. Also, we find contradiction in the testimony of the witnesses of the prosecution as to the demand for money. Some witnesses have stated that the money was demanded for purchase of a bus, others stated that it was demanded for purchase of a car. PW-1 Trishna Kumari stated that the money was demanded for purchase of a car (in English version word “vehicle” is written but …6… in vernacular word “car” is there). PW-5 Bihari Lal, Mama of the deceased, stated that only financial aid had been sought for purchase of a bus. It has come in evidence that even before the marriage of the appellant with the deceased, the father of the appellant was having a bus, which had been sold, probably for the reason that the appellant is a Purohit by occupation and is considered to be a good Purohit in the area. Again, if the deceased was being harassed and subjected to cruelty from day one after the marriage, as is alleged by the prosecution, there could not have been any reason for her to have taken her life on the fateful day, when it is not the allegation of the prosecution that something special had happened, forcing her to take her life. 11. PW-1 Trishna Kumari admitted in the cross- examination that the deceased was capable of making statement when she went to Community Health Centre at Bharari and met her, but she said nothing when asked as to why she had taken the extreme step. She also admitted that when she asked the appellant about the cause of the deceased consuming poison, he told that on the previous night there was a telephonic call and that when on the next morning he left the house saying that he was going to the telephone exchange to find out as to who had made the blank call, the deceased got upset and on return from the telephone exchange he found that she had consumed poison. This part of the statement of PW-1 Trishna Kumari fits into the defence version. The defence of the appellant cannot be said to be an afterthought, because he stated this to be the cause of the …7… deceased consuming poison, even when the deceased was alive and was undergoing treatment at Community Health Centre, Bharari. The plea of the appellant is further corroborated by DW-8 Govind Singh, a Lineman from Hatwar Telephone Exchange, and an entry in the register, copy Ex. DW-8/A, maintained by him. DW-6 Anil Kumar, a friend of the appellant, who was with him on the night on which the call was received and who accompanied him to Hatwar Telephone Exchange, also corroborates the defence plea. Another reason for believing the defence version is the delay in lodging the FIR. As already noticed, the FIR was lodged after the conduct of inquest by the police. 12. For the foregoing reasons, we hold that the learned trial Court has not appreciated the evidence correctly and has fallen in error in returning the finding that the appellant is guilty of offences of cruelty and dowry death, punishable under Sections 498-A and 304-B of the Indian Penal Code. Consequently, we accept this appeal, set aside the judgment of the trial Court and acquit the appellant of all the charges that were framed against him. He being in jail, serving out the sentence, is ordered to be set free immediately, in case his detention is not required in any other case. Appeal stands disposed of. ( Surjit Singh ), J June 30, 2008(sd) ( Surinder Singh ), J