IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. Criminal Revision No. 161 of 2004. Judgment reserved on : 22.9.2011 Date of decision: 03.11.2011 Vakil Chand Chandel …Petitioner. Versus Ajay Kumar and others ....Respondents. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting ? No For the Petitioner : Mr. Sanjeev Bhushan, Advocate. For the Respondents. Ms. Divya Sood, Advocate vice Mr. Anoop Chitkara, Advocate for respondents No. 1 and 2. Ms. Ruma Kaushik, Addl. A.G. with Mr. R.P.Singh, Asstt. A.G. for respondent No.3. __________________________________________________________ Kuldip Singh, Judge The complainant has filed the present revision against the judgment dated 24.1.2004 passed by the learned Sessions Judge, Hamirpur in Sessions Trial No. 09 of 2002 acquitting respondents 1, 2 for offences punishable under Sections 306, 498-A read with Section 34 IPC. The State has not assailed the judgment of acquittal dated 24.1.2004. 2. The prosecution case in brief is that respondent No.1 __________________ 1 Whether reporters of Local Papers may be allowed to see the Judgment ? Yes. 2 husband and respondent No.2 mother-in-law of the deceased Smt. Sunita Devi tortured her during her life time for not bringing sufficient dowry, they instigated her to commit suicide and thereby abetted the commission of suicide. The further case of the prosecution is that deceased Smt. Sunita Devi was married to respondent No.1 on 7.11.1993. She gave birth to two children one male and one female. She set her on fire in the matrimonial home at village Jalari on 5.4.2001 in the evening. PW-11 Vakil Chand father of the deceased was informed telephonically by one Sarvo Ram, cousin of respondent No.1. PW-11 complainant accompanied by his wife Smt. Jogindra Kumari PW-12 rushed to village Jalari and reached there on 6.4.2001 early in the morning. PW-11 informed the police of Police Station, Nadaun telephonically at about 6.45 a.m., rapat No. Ex.PW-7/A was entered and the police came to the spot. 3. The statement Ex.PW-7/B of complainant was recorded by PW-14 Nand Lal alleging torture on the part of the respondents to deceased for not bringing sufficient dowry. The complainant suspected of commission of suicide by his daughter due to torture of the respondents.On the basis of statement Ex.PW-7/B, FIR Ex. PW- 7/C came to be registered at Police Station, Nadaun. The case was investigated by PW-14 Nand Lal,S.I.The inquest report Ex. PW-14/C was prepared.The postmortem report Ex.PW-2/B of deceased was obtained. It was opined that the cause of death was extensive superficial burns followed by shock.F.S.L. report Ex.PW-10/B was obtained. PW-10 Dr.D.K.Ghosh,State Medico Legal Adviser-cum- 3 Prof. & Head, Deptt. of Forensic Medicine, IGMC, Shimla gave his final opinion Ex.PW-10/A qua the cause of death of the deceased. On completion of investigation, challan was submitted against the respondents for commission of offence punishable under Sections 498-A, 306 read with Section 34 IPC. The respondents were accordingly charged, who pleaded not guilty and claimed trial. 4. The prosecution has examined 14 witnesses and produced some documentary evidence. The statements under Section 313 Cr.P.C. of respondents were recorded. They denied the prosecution case. In defence, the respondents have examined four defence witnesses. On conclusion of trial, the learned Sessions Judge acquitted the respondents, hence revision by the complainant when the acquittal of the respondents was not assailed by way of appeal by the State. 5. I have heard Mr. Sanjeev Bhushan, Advocate, learned counsel for the petitioner, Ms. Divya Sood, Advocate, learned counsel for respondents No.1 and 2 and the learned Additional Advocate General for respondent No.3. On behalf of the petitioner, it has been submitted that the learned Sessions Judge has mis- construed, misinterpreted the evidence on record in acquitting the respondents. It has been submitted that the case has been fully proved against the respondents. The impugned judgment is based upon the surmises and conjectures. The learned Sessions Judge has drawn wrong inferences and conclusions from the evidence. PW-11 and PW-12 parents of the deceased have stated that before 4 the occurrence the respondents had been maltreating and torturing the deceased Sunita Devi. Some witnesses have turned hostile due to pressure of the respondents. The father of respondent No.1 and husband of respondent No.2 is a retired police Inspector, who exerted his influence and his influence is discernable from the statements of some witnesses. The deceased was well educated. The court below has completely discarded the statements of reliable prosecution witnesses. The learned counsel for respondents No.1 and 2 has supported the impugned judgment. It has been submitted that the court below has elaborately discussed the entire prosecution evidence. The view taken by the learned Sessions Judge in acquitting the respondents emerges from the evidence on record. The verdict of the learned Sessions Judge has been accepted by the State and, therefore, the State has not assailed the impugned judgment. The learned counsel for respondents No.1 and 2 has prayed for dismissal of the revision. The learned Additional Advocate General has prayed for passing of appropriate order in terms of the evidence which has come on record. 6. In order to appreciate the rival contentions, it is necessary to refer to the evidence which has come on record. PW-1 Nand Lal has stated that Vakil Chand father of deceased Sunita is his nephew. Sunita died in the house of the accused. After the marriage she had been coming to him and did not complain anything against the accused. Lastly she met him two months prior to her death and during that period she did tell that she was being treated 5 nicely by her in-laws. He was declared hostile and was cross- examined by the Prosecutor. In the cross-examination, he was confronted with his statement made to the police but he denied that he made various portions of his statement to the police. The prosecution did not extract in his cross-examination anything favourable to the prosecution. In the cross-examination conducted by the defence, he has stated that accused Nirmala Devi and her husband Sita Ram had shifted to their house and were residing there well before the incident. Ajay Kumar accused used to reside in the house at Jalari alongwith the deceased and his children. 7. PW-2 Dr. R.S.Dhatwalia has stated that he alongwith his colleague S.K.Sharma, conducted postmortem on the body of deceased Smt. Sunita Devi and has proved postmortem report Ex.PW-2/B. He has stated that deceased was having extensive superficial burns. The percentage of burn was more than 90%. The deceased had died of extensive superficial burns followed by shock. In cross-examination, he has stated that he had seen photocopy of prescription slip Ex.D-1. It is regarding one Sunita Devi, she was suffering from chronic anxiety state. Sunita visited the hospital on 2.2.2001 and 5.3.2001. She was advised to visit the OPD after one month. He has stated that there is tendency of commission of suicide slightly more in chronic anxiety state. Volunteered the person who is fed up from life also prefers to die some time. 8. PW-3 Saravjeet Singh has stated that Ajay Kumar is his cousin. He was called by Ajay Kumar to inform the parents of 6 the deceased that Sunita had burnt in fire and was in serious condition. On this he made a telephonic call to the father of deceased and told him the incident. In cross-examination, he has stated that Sita Ram Parmar and his wife Nirmala Devi were also informed telephonically. PW-4 Smt. Veena Devi has stated that she remained Pradhan of Gram Panchayat, Jalari since 2001. The house of accused is in Gram Panchayat, Jalari. She came to know that fire had engulfed the house of accused. She rushed to the spot and saw the dead body of Sunita Devi in burnt condition in the kitchen situated in upper storey of the house. In cross-examination, she has stated that she had not received any complaint from deceased Sunita Devi or her parents regarding maltreatment or cruel behaviour given to Sunita Devi by accused. She did not see or hear any such behaviour of the accused towards deceased. At the time of the incident, the deceased was alone in the house. The family of Sita Ram used to reside at their house at Anu. PW- 5 Shivender Pal has stated that in the year 1998 accused Ajay Kumar took on rent from him at Jalari shop and residence. He started living alongwith his wife and children there. He did not see anything abnormal in the behaviour of accused Ajay and his wife deceased Sunita. He did not support the prosecution and was cross-examined by the Public Prosecutor. He was confronted with various portions of his statement made to the police but he denied that he made such statement to the police. In cross-examination conducted by the prosecution nothing material has been extracted. In the cross-examination 7 conducted by the defence, he has stated that Sita Ram father of the accused Ajay had been bringing milk etc. to the children from the house. PW-7 Baljeet Singh Head Constable has proved Ex.PW-7/A copy of Rapat Roznamcha, rukka Ex.PW-7/B and FIR Ex.PW-7/C. 9. PW-10 Dr. D.K.Ghosh, Principal Govt. Medical College, Tanda has stated that in the year 2001 he was posted as Professor and Head, Department of Forensic Medicines, I.G.M.C., Shimla- cum-State Medico-Legal-Advisor. He has proved his opinion Ex.PW- 10/A. On receipt of medical examination report Ex.PW-10/B, he gave final opinion dated 11.9.2001. In cross-examination, he has stated that as per postmortem report the deceased was suffering from chronic anxiety state for which she was under treatment in Zonal Hospital, Hamirpur since February, 2001. He has stated that police had shown him the OPD treatment slip of Zonal Hospital, Hamirpur which has not been mentioned in his report. 10. PW-11 Vakil Chand is the father of the deceased Sunita and has stated that deceased Sunita was married to accused Ajay on 7.11.1993 and two children were born to her from the wedlock. After the marriage the relations of accused remained cordial with deceased and thereafter they treated her with cruelty which the deceased disclosed to him on telephone. When the deceased was washing clothes, her mother in law asked her as to why there was such a delay in washing the clothes. The mother in law asked the deceased as to why she did not demand washing machine from her parents. The accused were torturing the deceased 8 on small matters. The accused Nirmala was in the habit of taunting the deceased. Nirmala turned out the deceased, her son Ajay alongwith children from the house. Ajay started living separately but continued treating the deceased with cruelty at the instance of his mother Nirmala. 11. On 6.12.2001 then said in November, 1999 he went to Jalari and noticed that both of them were residing in bad condition and even cots were hired from landlord and neighbours. He then went to Shimla. Thereafter, deceased continued to contact him on telephone after 3-4 days intervals and informed that accused Ajay Kumar was not treating and looking after her properly. Ajay ultimately joined the company of his parents after about 13 months staying separately from them. The deceased lastly visited his place at Shimla on 30.12.2000 alongwith Ajay Kumar. The deceased at that time told that accused Nirmala had asked her to get his house at Shimla transferred in her name.The deceased returned to Jalari and continued to inform him on telephone regarding maltreatment. 12. The deceased did not take the matter before the Gram Panchayat or police as according to her the prestige of the family was involved. On 5.4.2001 he was informed telephonically by PW Sarbu alias Sarabjit Singh that deceased was seriously ill and her hand had also been burnt and he should reach at Jalari at once. He and his wife rushed to Jalari on 6.4.2001 around 3.00 a.m. He found his daughter in burnt condition and lying dead in the kitchen. In the morning, he reported the matter to police. The police came to 9 the spot and recorded his statement Ex.PW-7/B. The deceased was post-graduate. In cross-examination, he has stated that Sita Ram had shifted to his house at Anu on 22.3.2001. Sita Ram father in law of the deceased had purchased Kisan Vikas Patras in the sum of ` 1,00,000/- in the name of deceased. Sita Ram had deposited ` 50,000/- in the name of Ashima daughter of the deceased in Punjab National Bank, Bhumpal and deceased was nominated as her nominee. The police came to the spot at about 8.00 a.m. and his statement was recorded in between 1 – 2 noon. The deceased never disclosed about her ailment with which she was suffering. 13. PW-12 Smt. Jogindra Kumari has stated that deceased Sunita was her only daughter. The accused treated her nicely for 3-4 years after the marriage. Thereafter, they started maltreating her. She had been informing her constantly. The accused had been treating the deceased with cruelty on account of dowry. She, however, could not give dates of instances of cruelty. On 5.4.2001 PW Sarbu brother in law of the deceased informed telephonically that deceased was seriously ill on account of electrocution of her feet and hands. In cross-examination, she has stated that Sita Ram had deposited money in the name of children of the deceased. She denied that deceased was mentally depressed and undergoing treatment. 14. PW-14 S.I. Nand Lal, has stated that he is Investigating Officer. He has stated that there are houses of other villagers adjoining to the house of the accused. Kalyan Singh firstly noticed 10 the smoke coming out of the windows and ventilators of the house of the accused. Ajay Kumar on coming to know about the fire contacted the electrician and got switched off the electricity supply to the house and rushed there. Sita Ram had handed over a prescription slip to him during investigation pertaining to the treatment of the deceased and the same was taken into possession. The said prescription slip may not be in the challan as he had not prepared the challan and the challan was prepared by SHO. The prescription slip was issued by doctor Dhatwalia. 15. The accused in their statements under Section 313 Cr.P.C. denied the prosecution case. DW-1 Rajiv Gupta, Clerk in Kangra Central Cooperative Bank, Nadaun has proved certificate Ex.D-1 and photocopy of draft pay-in-slip Ex.D-2. DW-2 Harbans Lal, Sub Post Master, Jalari has proved the Kisan Vikas Patras Ex. D-3 to Ex.D-12 in the name of Smt. Sunita Parmar. DW-3 Subhash Chand Dhiman has proved deposit receipt Ex.D-13 in the name of Ashima, another deposit receipt Ex.D-14 in the name of Ashima, Ex.D-15 FDR and Ex.D-16 and Ex.D-17. DW-4 V.S.Kanwar, SDO (Telephones) has proved the detail bill print out Ex.D-18. 16. The marriage of respondent No.1 and deceased was solemnized on 7.11.1993. The occurrence took place on 5.4.2001. PW-11 father of the deceased in his statement under Section 154 Cr.P.C. Ex.PW-7/B has stated that from the marriage his daughter has given birth to one daughter and one son. The mother in law of 11 the deceased for the last about three years had been taunting the deceased for bringing more dowry. The husband of the deceased also used to maltreat the deceased at the instance of his mother. In December 1999 his daughter and son in law were turned out of the house. He received telephone call on 5.4.2001 at about 6.00 p.m. He and his wife went to Jalari and found that his daughter was lying dead due to burns and smell of kerosene was coming. Ex.PW-7/B is the immediate version of the father of the deceased after the incident. Ex.PW-7/B statement was recorded on 6.4.2001 at about 1.30 p.m. In Ex.PW-7/B no specific instance of ill-treatment and demand of dowry has been pointed out. The taunts at the instance of respondent No.2 to deceased for not bringing sufficient dowry in terms of time factor as per Ex.PW-7/B are relatable to the year 1998. There is no whisper in Ex.PW-7/B that there was any ill treatment or demand of dowry from respondents from the date of marriage 7.11.1993 till the year 1998. In other words, even as per PW-11, in the first five years of marriage, there was no demand of dowry nor there was any cruel behaviour of respondents towards the deceased. 17. PW-11 in the Court has made many improvements. In the statement Ex.PW-7/B there is nothing that the deceased had been informing the ill treatment of respondents to PW-11 on telephone which he has stated in the Court. Likewise, in Ex.PW-7/B there is no reference of talk which allegedly took place between PW-11 and deceased on her visit to Shimla on 30.12.2000 when 12 deceased allegedly told PW-11 that her mother-in-law had been asking her to persuade her father to transfer the Shimla property of her father in her name. There is nothing in Ex.PW-7/B that the deceased did not file any complaint against the respondents before the Panchayat or other lawful authority on account of prestige of the family which has been stated by PW-11 in his statement in the Court. 18. It has come on record that at the time of occurrence respondent No.1 and the deceased with children were living separately from the unit of his father Sita Ram who was residing at Anu. It has also come in evidence that father in law of the deceased had taken Kisan Vikas Patras in the name of the deceased in the sum of ` 1,00,000/- and a deposit of ` 50,000/- in the name of Ashima daughter of deceased with deceased as nominee. PW-12 Jogindra Kumari mother of the deceased has stated that accused had treated the deceased nicely for 3-4 years after the marriage. In her statement, she has not given any specific instance of maltreatment of deceased nor pointed out specific demand of dowry. The general allegations of maltreatment and demand of dowry in absence of specific proof of demand of dowry and cruelty are not sufficient to bring home the charge. 19. PW-2 Dr. R.S.Dhatwalia alongwith his colleague conducted the postmortem on the dead body of deceased Sunita Devi. He has stated that as per prescription slip Ex.D-1 Sunita Devi was suffering from chronic anxiety state. Sunita Devi 13 visited the hospital on 2.2.2001 and 5.3.2001. She was advised to visit OPD after one month. PW-2 has opined that there is tendency of commission of suicide slightly more in a chronic anxiety state. PW-10 Dr. D.K.Ghosh, Principal Govt. Medical College, Tanda has stated that as per postmortem report the deceased was suffering from chronic anxiety state for which she was under treatment in Zonal Hospital, Hamirpur since February, 2001. He has stated that police had shown him the OPD treatment slip of Zonal Hospital, Hamirpur. 20. In inquest report Ex.PW-14/C it has been stated that on 6.4.2001 at about 6.45 a.m. Vakil Chand had informed on telephone that body of his daughter in burnt condition was lying in the kitchen. In Ex.PW-14/C there is no reference of any suspicion or that deceased committed suicide on account of ill treatment. In postmortem report Ex.PW-2/B, it has been stated that deceased died of extensive superficial burns followed by shock. In Ex.PW-10/A PW-10 has observed that Vakil Chand believed that his daughter had been murdered and then burnt to conceal crime. The theory of murder and thereafter burning of the body of the deceased is not in consonance with postmortem report Ex.PW-2/B. In Ex.PW-10/A no evidence of homicidal injuries were found on the body of the deceased. In Ex.PW-10/A it has further been observed that deceased preferred the time of the evening around 5.30 p.m. on 5.4.2001 and the kitchen space when nobody was present in the house and she was free after serving meals to her husband in the 14 shop around 1.15 p.m. and thereafter finishing with all household work and when her daughter had gone for play around 4.45 p.m. the time when she was last seen alive. 21. The prosecution has not connected the conduct of the respondents either directly or indirectly so as to compel the deceased to commit suicide. The allegation of cruelty and demand of dowry by the respondents has also not been proved. It is unfortunate that deceased committed suicide but the respondents are not responsible for that nor it has been so established by the prosecution. It is not fair to put blame on the respondents of the unfortunate incident. 22. It has been stated that the father of respondent No.1 and husband of respondent No.2 retired from the police, he exerted influence and for that reason proper investigation was not conducted. It is not believable that PW-11 and PW-12 parents of the deceased were also under the influence of father of respondent No.1 and husband of respondent No.2. The collective reading of statements of PW-11 and PW-12 read with initial response of PW-11 in the form of statement under Section 154 Cr.P.C. nowhere proves the case of the prosecution. It has come on record that before the incident the father of respondent No.1 was living separately with his unit at Anu. 23. The respondent No.1 was living with deceased and his children and was running his own shop. The father of respondent No.1 though living separately but was taking care of the family of 15 respondent No.1. The prosecution has alleged the demand of dowry and cruelty on the part of the respondents but to the contrary, it has been established that father of respondent No.1 had taken Kisan Vikas Patras in the name of deceased. He also deposited substantial amount in the name of Ashima daughter of the deceased. This totally contradicts the greedy nature of the respondents No.1 and respondent No.2 otherwise Sita Ram father of respondent No.1 would not have taken steps to make deposits in the name of deceased. 24. The trial Court has rightly appreciated the material on record in returning the finding that there is no cogent and reliable evidence that the deceased was harassed and maltreated by the respondents with a view to coerce her or her relatives to meet any unlawful demand for any property or valuable security nor there is any evidence that any act of the respondents drove the deceased to commit suicide or instigated her to do so and thereby abetted the commission of suicide by the deceased. The trial Court has taken a possible view from the evidence on record. In revision, re- appreciation of the evidence is not possible. However, in order to satisfy the legality and propriety of the impugned judgment, I have considered the evidence also. It has not been proved that the impugned judgment is perverse. The view taken by the learned trial Court emerges from the evidence on record. There is no merit in the revision. 16 25. In view of above discussion, the revision fails and is accordingly dismissed. November 3, 2011. ( Kuldip Singh ) (GR) Judge.