IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 469 of 2000. Date of decision: 23.11.2010. State of H.P. ….. Appellant. Vs. Puran Chand …. Respondent. Coram The Hon’ble Mr. Justice R.B. Misra, Judge. The Hon’ble Mr. Justice Sanjay Karol, Judge. Whether approved for reporting?1 No. For the appellant : Mr R. K. Sharma, Senior Addl. Advocate General. For the respondent : Mr. Vikram Thakur, Advocate Sanjay Karol J. (Oral. For an offence, which is alleged to have been committed on 6.6.1996, accused was put to trial. In terms of judgment dated 28.4.2000 passed by learned Addl. Sessions Judge(II), Kangra at Dharamshala, in Sessions Case No. 17-P/97 titled as State of H.P. vs. Puran Chand, accused stands acquitted of the charged offence. 2. It is the case of the prosecution that on 10.2.1996 Smt. Meena Devi was married to accused Puran Chand. At the time of marriage, her father Sh. Jyoti Parkash of village Simbal, Tehsil Baijnath gave sufficient dowry including `.20,000/- as cash. After Whether the reporters of the local papers may be allowed to see the Judgment? 2 the marriage, on her visit to her parental house, Meena Devi complained to her mother Smt. Rooma Devi (PW-4) that accused had been indulging in her character assassination. Accused demanded dowry in the shape of a scooter. At times he also gave beatings. On 2.6.1996, accused along with Meena Devi visited the house of his in-laws in village Simbal to attend the wedding ceremony of her relative. There also accused levelled allegations of Meena Devi having illicit relationship. On 5.6.1996, accused slapped Meena Devi in the presence of Smt. Rooma Devi (PW-4) and brother Sushil Kumar (PW-2). Meena Devi also informed Sushil Kumar that accused was making a dowry demand of a scooter. Sushil Kumar confronted the accused about this fact. However the matter was pacified and accused took Meena Devi back to his house. On 6.6.1996, PW-2 visited Meena Devi at her matrimonial house where also she complained to him that accused had not only levelled allegations of her having illicit relationship with one Rinku, but had also given beatings and made dowry demand of a scooter. When confronted by PW-2, accused assured that he would improve his conduct in future. Even Sh. Jagan Nath (PW-3), relative of Meena Devi was aware of the dowry demand. In the night intervening 6/7th June, 1996 Meena Devi died after consuming poison. Accused informed her parents. In the early hours of 7.6.1996, PW-2 lodged 3 Rapat No.3 (Mark ‘X’) with the police. Police arrived at the spot and recorded statement (Ext.PW-2/A) of PW- 2 under Section 154 Cr.PC, on the basis of which F.I.R. No.64/96 (Ext.PW-4/A) dated 7.6.1996 was registered with the Police Station Baijnath under Sections 304-B, 498-A IPC. Investigating Officer Balwan Singh (PW-9) prepared inquest report (Ext.PW- 1/B) and got post mortem conducted at the Civil Hospital, Palampur through Dr. K. C. Kalyan (PW-1) who after seeing the viscera report of the Chemical Analyst opined that Meena Devi had died due to aluminium Phosphide poisoning. Clothes of the deceased (Ext.P-1 to Ext.P-4) were taken by the police. With the completion of investigation challan was presented in the Court for trial. 3. Accused was charged for having committed offences punishable under Sections 498-A & 304-B IPC to which he did not plead guilty and claimed trial. 4. In order to prove its case prosecution examined 12 witnesses and the statement of the accused under Section 313 Cr.PC was also recorded in which he took the following defence: “I am innocent. I had been keeping Meena Devi with love and affection and never committed cruelty on her or demanded any dowry. In fact, Meena was continuing her illicit relations with Rinku.” 4 5. In support of his defence, accused examined 5 witnesses. 6. Court below acquitted the accused of the charged offence, hence the present appeal. 7. To begin with we may point out that prosecution has only examined the close relatives of the deceased. Statements of mother Smt. Rooma Devi (PW-4), brother Sushil Kumar (PW-2) and uncle Jagan Nath (PW-3) only have been recorded. Importantly other independent witnesses including the Pradhan have not been examined in Court for the reason that they were won-over. We may point out that there is nothing on record to prove this fact. Trial Court also did not find this fact to be born out from the zimnies. 8. It is a matter of record that on 7.6.1996, PW-2 got report (mark ‘X’) lodged at Police Station, Baijnath. Police was already aware of the fact that Meena Devi had expired, yet police went ahead to again record the statement of PW-2 under Section 154 Cr.PC (Ext.PW-2/A) on the basis of which FIR was recorded. This was not permissible in law. Now time gap between the recording of the two statements is more than 9 hours. There is variation in the two. Factum of dowry demand of scooter is not reported in the first report. Why did the police not register the FIR on the basis of report (Mark ‘X’) has not been explained. It 5 appears that the police deliberately gave time to the complainant to deliberate upon the matter. 9. From the statement of the Investigating Officers, namely, Balwan Singh (PW-9) and Mohinder Singh (PW-11), it is apparent that during investigation they were informed by the accused and his family members that deceased was having illicit relationship with Rinku, which fact accused also brought it to the notice of the mother and brother of the deceased. Allegedly inspite of their intervention and advise, deceased continued with such relationship. They also state that during investigation they found that it was the accused who had informed the parents of the deceased about the incident. In fact both police officers admit that they did not make any further investigation about the deceased having any illicit relationship with Rinku. Why so has not been stated. In fact PW-11 admits to have interrogated Rinku but not recorded his statement. Why not, is not clear. It is not that the allegation was found to be baseless. It renders the version of the accused to be probable. They also clarify that in the Police Station Sushil Kumar had not stated anything about the dowry demand of `.20,000/- in cash or that the deceased was having bluish marks on his body. Now importantly they admit that people from the neighbourhood were also not examined. 6 10. At this juncture, we may also note that accused, through the statements of his close relatives, Sakina (Bhabi)(DW-1), Geeta Devi (aunt) (DW-2), Ravinder Singh (brother) (DW-3), Ishwar Chand (uncle) (DW-4) and Bishambar Singh (DW-5) has tried to prove that deceased was having illicit relationship with Rinku who had in fact come to visit the deceased in the newly constructed house of the accused. Universally it has come that when confronted with, the deceased was not able to explain her relationship with Rinku. 11. Defence witnesses can also be said to be interested witnesses. But however after careful scrutiny of the evidence of the prosecution witnesses, we feel that there are several and material contradictions, improvements and improbabilities which have rendered their version to be extremely doubtful. 12. PW-2, PW-3 & PW-4, in one voice have deposed that accused had made demand of `.20,000/- which was paid to him by them. Accused levelled allegations of un-chastity against the deceased. Accused had further made dowry demand of scooter. Accused used to give beatings to the deceased and even two days prior to the incident had given beatings as a result of which injuries were noticed on the body of the deceased. Now this version of the prosecution does not inspire confidence, as it stands contradicted by the material 7 on record. We also find their statements to be improbable apart from there being several improvements from their earlier version recorded by the police under Section 161 Cr.PC with which they were confronted with. Dowry demand of scooter and beatings is alleged to have been made on 5.6.1996. Death took place in the night intervening 6/7th June, 1996. Now if this was true then why is it that PW-2 did not get this fact recorded in the report (Mark ‘X’). Investigating Officer did not find the demand of `.20,000/- and payment thereof to be true. Version of the witness that injury marks were found on the body of the deceased stands falsified by the medical evidence on record. According to Dr. K. C. Kalyan (PW- 1) no injury marks superficial or otherwise, were found on the body of the deceased. No marks of violence were also found on the body. Prosecution has not been able to examine any independent witness to corroborate the version of the interested witnesses. Ordinarily, statements of interested witnesses can be relied to prove the culpability of the accused but we find their version not to inspire confidence and it would be totally unsafe to rely upon the same. 13. Defence taken by the accused appears to be probable and plausible. Allegations of un-chastity were not levelled by the accused for the first time during investigation or trial. Brother of the deceased 8 admits that during life time of his sister accused had brought to his notice that his sister was having illicit relationship with one Rinku. 14. From the record, it cannot be said that prosecution has been able to prove beyond reasonable doubt, by leading clear, cogent, consistent and reliable evidence to show that soon before her death deceased was subjected to cruelty or harassment by her husband in connection with dowry demand or that deceased had subjected his wife to cruelty by his willful conduct which prompted the deceased to commit suicide. It also cannot be said that the accused harassed his wife with a view to coerce her to meet any unlawful demand of any property. Presumption under Section 113(b) would only operate if prosecution is able to establish ingredients under Section 304-B IPC, which in the instant case are not proved. {State of Karnataka vs. M. V. Manjunathegodwa & Anr. (2003) 2 SCC 188}. 15. The accused has had the advantage of having been acquitted by the Court below. Keeping in view the principles laid down in Mohammed Ankoos and others vs. Public Prosecutor, High Court of Andhra Pradesh, Hyderabad, (2010) 1 SCC 94, it cannot be said that the Court below has not correctly appreciated the evidence on record or that acquittal of the persons has resulted into travesty of justice. No ground for 9 interference is called for. The present appeal is dismissed. Bail bonds, if any, furnished by the accused are discharged. (R.B. Misra) Judge (Sanjay Karol) Judge November 23, 2010 (rana)