1 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 649 of 2001 Decided on May 16, 2011 __________________________________________________________ State of H.P. …Appellant. Versus Swari Devi & Others ...Respondents. Coram The Hon’ble Mr. Justice R.B. Misra, Judge. The Hon’ble Mr. Justice V.K. Sharma, Judge. ¹Whether approved for reporting? For the appellant: Mr. R.K. Sharma, Senior Additional Advocate General. For the respondent: Mr. Romesh Verma, Advocate. Justice R.B. Misra,J. (Oral) The present Criminal Appeal has come up for adjudication after the grant of leave to appeal has been granted under Section 378 (3) of the Code of Criminal Procedure in reference to judgment dated 24.5.2001, passed by Learned Sessions Judge, Mandi, H.P., in Sessions Trial No.17 of 1998, under Sections 498-A and 306 of the Indian Penal Code acquitting the alleged respondents-accused. 2. The prosecution story, which emerges from the evidence led before this Court, is that Falaki Devi was married to Daulat Ram 7-8 years prior to the lodging of the report on 26.6.1997. One son was born from this wedlock and Daulat Ram husband of the deceased was serving at P.G.I. Chandigarh, while Falaki Devi was living in her in-laws' house alongwith Dunaju Devi. Dunaju Devi accused is the mother-in-law of the 2 deceased, Chunju accused is Jeth of the deceased while Sawari Devi accused is Jethani and Amar Singh accused is brother of the father-in-law of Falaki Devi. It is in evidence that the deceased was only living with Dunaju Devi her mother-in-law while the remaining accused were living separately and they used to give beating to the deceased and used to quarrel with her. PW.1 Mangat Ram, father of the deceased used to send her back after advising her. The act of maltreatment/beating was sought to be substantiated by the parents of the deceased as well as other relatives. It is also in evidence that previously also when the deceased was given beating, a report was lodged to the police and the matter was compromised. It was alleged that because of maltreatment the deceased had committed suicide by jumping in the river. 3. After investigation, accused were charged for the aforesaid offences. In order to prove its case the prosecution has examined as many as 24 prosecution witnesses, whereas, the accused through their statements under Section 313 of Cr.P.C., denied the prosecution case. 4. PW.1 Mangat Ram, father of the deceased, has endeavoured to support the prosecution case in the same line that accused-respondents used to give beatings to the victim- deceased. 5. PW.2 Sh.Nageshwar Kumar Bishat, cousin of the victim-deceased, in support of the prosecution case has stated that twice or thrice victim-deceased divulged him that she was 3 harassed in the hands of the accused. 6. PW.3 Sh.Joginder Singh, elder brother of the deceased has stated that all the four accused used to beat his sister and once they lodged a report with the police about this but he does not know what happened to that report, however, nothing is known that any complaint was made to the residents of the area or to the police or to the Pradhan of the Gram Panchayat. 7. PW.4 Smt.Sheela Devi, who was acquainted with the victim-deceased had noticed blue mark on the body of deceased. PW.4 Sheela Devi has further stated that Chunju and Amar Singh live separately alongwith their wives and Falaki used to live with her mother-in-law, however, she has not indicated any specific instance of maltreatment on the victim- deceased. 8. PW.5 Smt.Durgi Devi in her endeavour to support the prosecution case has stated that victim-deceased used to come frequently to her parental house and used to meet her and she was happy. PW.5 Smt.Durgi Devi, however, was declared hostile as her statement did not support the prosecution case, thus her statement does not inspire confidence being an independent witness. 9. PW.6 Sh. Kali Dass, PW.7 Sh. Lehanu Ram, PW.8 Sh.Rakesh Kumar, PW.9 Sh.Dalip Singh, PW.10 Sh. Laxmi Sen, PW.11 Mast Ram and PW.12 Kanshi Ram are not very material. 4 10. PW.13 Changi Devi mother of the deceased has only stated that her daughter used to come to the house of her parents whenever she was beaten by the accused. However, she was not suspected that accused persons have killed her daughter-victim. 11. PW.14 Smt.Raj Kumari who appears to be the wife of PW.3 Joginder Singh, brother of the deceased, had stated that after the marriage victim-deceased used to visit their house and told them that the accused beat her but he did not know why she was beaten and how she died. 12. PW.16 Sh.Devi Singh Pradhan of the Panchayat has stated that about 2 ½ years ago Chunju accused told him that his daughter-in-law Falaki sometimes runs from the house and hides herself. However, she never reported the matter to him about anything. PW.16 has also stated that Swari and Chunju lived separately. In view of testimony of PW.16, nothing had been heard by any of the villagers regarding harassment and maltreatment given by the accused persons to victim- deceased. 13. PW.17 Sh.Khayali Ram has stated that during investigation, police took into possession copy of compromise given by the father of the victim-deceased. PW.23 Sh.Baleshar Singh, uncle of the deceased in support of the prosecution case stated that 5 months prior to the death of the victim-deceased, she had come to her father's house and reported about some unusual things which took place with victim-deceased. PW.24 5 SI Jaishi Ram is not very material to support the prosecution case. 14. PW.15 Dr.Sunil Thakur conducted the postmortem on the dead body of Falaki Devi on 26.6.1997 and this postmortem was also conducted by Dr.Raj Kumar with him. They observed as under:- External appearance: The subject was averagely built female about 23/24 years. The body was stout, was not decomposed, rigor mortis was present in the lower limbs only. The body was clothed in printed colour salwar only. There was no cloth on the upper part of the body. There were three ordinary metal bangles on the right hand and ear ring, in the left ear. Wounds: Bruises etc. on the body. There was a clean lacerated wound on laterial 1/3 of right brow, size 2 cm x ½ cm. Another clean, lacerated wound on lateral 1/3rd of left eyebrow size 1-1/2 cm x ½ cm. An laceration on the scalp over right frontal bone, size 4 cm x 1 cm. Another lacerated wound over left perital bone size 1 cm x 0.5 cm. All these injuries were inflicted ante mortem. Cranium and spinal Cord. There were two lacerations in scalp. Both were ante mortem. Skull was not opened. Thorax: Walls, ribs and certilages were normal. Pleaurae was normal. Larynx and trachea: Lining whitish; trachea filled with water 6 and a few rice particles. Right lung: It was pink, light to touch, no rib marks, no edema and on cutting did not exude froth, water or blood. Pericardium: Heart: Large vessels etc. All were normal. Abdomen: Walls were normal, peritoneum was normal, mouth pharynx and esophagus were normal. Stomach and its contents: Stomach was full with cooked rice and dal in a pultaceous for. No free water or sand or glass or gravel or algae. Right anterior wall has a 3 cm x 2 cm patch of sub serous haemorrhage. Small intestines and their contents: It was empty with normal appearance. Large intestines and their contents: it was gas filled, no solid or liquid. Liver: Normal. Spleen kidneys were congested. Bladder was empty. Organs of generation, external an internal; External organ showed no injury, no object in vagina, uterus was not pregnant. Muscles, bone and joint had no injury. In his opinion, cause of death could not be ascertained. Hence, the body was referred to Zonal Hospital, Mandi for examination by Forensic Expert and for his opinion as to the cause of death, whether it was head injury, or drowing or by poisoning. 15. PW.18 Dr.J.N. Chauhan has stated that reference was made by the Medical Officer, Civil Hospital Jogindernagar and the dead body was also brought to Mandi. On examination of the dead body he found as under:- There were decomposition changes; as face was swollen, tongue protruding out, abdomen distended and Rigour merits in passing of stage. 7 The external injuries present on the body corresponds to the injuries mentioned in the postmortem report. After removing the scalp, there was a contusion dark brown in colour over frontal area up to forehead and backward up to middle of parietal area. There was no skull fracture. Brain tissue appeared normal. After removing the postmortem stitches from chest and abdomen part, the lungs were congested, dark brown at lower half due to decomposition and hypostasis. Heart was empty. Part of livers and kidneys were congested. Uterus is lying open and empty. Bladder was empty. 16. PW.21 Puran Chand, the then SHO Jogindernagar and PW.22 ASI Balbir Singh in due discharge of their official duty have endeavoured to support the prosecution case to the extent the role assigned to them. 17. On analysis of the prosecution witnesses and materials on record the learned Sessions Judge has concluded as below:- “From the above detailed discussion this fact stands established that the deceased had died an accidental death i.e. had fallen in Rana Khad from where her body was extricated by the police. The mere fact that some injuries and bruise etc. were found on the body which were ante-mortem in nature are not sufficient to hold that these injuries were caused by the accused or any other person since there is no evidence with regard to any beatings prior to the death. Moreover, these injuries could have been sustained 8 by a fall from sufficient height in the Khad in which there must be big and small stones. It is also in the statement of PW.15 Dr.Sunil Thakur that the stomach was full, bladder was empty and he had not given the duration of the injuries. Thus, it was sought to be submitted that the deceased may have been going for easing out and may have fallen accidentally. There are no circumstances pointing out to this fact of accidental fall. Thus no definite opinion can be given that she had committed suicide though the possibility of the accidental fall is very remote. There is nothing in the statements of the prosecution witnesses except in the statement of one PW who had found her sitting on the way but she never told that she was feeling depressed because of the maltreatment given by accused persons. Apart from the above a perusal of the statements fo the witnesses examined by the prosecution in regard to the maltreatment it is clear that the statements of these witnesses are not specific about the period or probable period when beating was given by each of the accused person and how many times. I fully agree with the submission of the learned Public Prosecutor for the State that it is not possible for the parents to give an account of the beatings given to their daughter but in case severe beating was given sometimes or the deceased was turned out by her inlaws for which there is no specific evidence, some evidence must be led about the probable period or number of times when the beatings were given so that the Court could conclude that there was a maltreatment by the accused persons. Even the witnesses are not cogent on this point as to when 9 these beatings were given and by which of the accused. It is also clear from the perusal fo the evidence that the husband of the deceased was pigmy (Bauna), though the specific height of the husband of the deceased has not been brought on record. It is clear that the deceased had not complained against her husband but she was living alone with her mother-in-law and she was not getting love and affection regularly of her husband who was serving at Chandigarh away from this place. It has also come up in the testimony of PW.13 Chhangi Devi mother of the deceased that Falaki had not seen Daulat Ram her husband before her marriage. She stated that Falaki Devi was more than 5 feet in height. She also stated that Falaki used to come to their house for 10 times in one month though she had clarified that she used to come when she was beaten. She stated that Falaki alongwith her mother-in-law lived separately while the remaining accused were living separately. She also stated that she never got her daughter medically examined. She also stated that she has stated for the first time about her daughter being repeatedly beaten by the accused”. 18. We have carefully scrutinized the prosecution witnesses, materials on record as well as medical evidence. As revealed from medical evidence prosecution could not conclusively prove that how the victim-deceased died, however, PW.15 has opined that the death may be caused by fall. None of the prosecution witnesses has come forward to indicate 10 about the specific date, time and place about maltreatment and harassment and also none of the prosecution witnesses has come forward to indicate that any complaint was lodged to the police, Panchayat Pradhan or any information of any kind of maltreatment and harassment was given to the residents of the locality. The prosecution witnesses reveal that husband of the victim was pigmy in size and she was living alone with her mother-in-law and was not even getting adequate love and affection of her husband. The victim-deceased was frequently coming to the house of her parents and her arrival to her parents' house indicates that she was not comfortable in her in- laws' house. Surprisingly, an old woman i.e. Dunaju Devi mother-in-law of the deceased age of 60-70 years with whom the victim- deceased was residing, whereas other accused-respondents were not residing with the victim-deceased. Nothing has been brought as to how the accused given beatings or maltreated the victim-deceased. In the facts and circumstances, merely on the grounds of surmises prosecution cannot be said to prove its case as the prosecution has to stand on its own legs. 19. On analysis of the prosecution witnesses and materials on record, learned Sessions Judge has rightly arrived at a conclusion that the prosecution has not been able to prove its case beyond reasonable doubt. In our considered view also sufficient doubt has been created and prosecution has failed to bring home the guilt to the accused. Therefore, there is no 11 scope of interference in the findings given by learned Sessions Judge. Accordingly, the present criminal appeal, being devoid of any merit, is dismissed. 20. The bail bonds furnished by the accused/respondent are hereby discharged. (R.B. Misra) Judge May 16, 2011 (V.K. Sharma) (Purohit) Judge