IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.Appeal No. 502 of 2002. Judgment reserved on: 30.4.2009 Date of judgment: May 6, 2009 Mangal Dass ..Appellant. Versus State of H.P. . ..Respondent. Coram The Hon’ble Mr. Justice Surjit Singh, Judge. Whether approved for reporting?1 For the Appellant : Mr. Bimal Gupta, Advocate. For the Respondent : Mr. P.M.Negi, Deputy Advocate General. Surjit Singh, J. Appellant, Mangal Dass, is aggrieved by the judgment of Sessions Court, whereby he has been convicted of offences, punishable under Sections 306 and 498-A IPC, and sentenced to under go rigorous imprisonment for five years and to pay fine of Rs.1000/-, in respect of the offence under Section 306 IPC and to undergo rigorous imprisonment for two years and to pay fine of Rs.1000/- under Section 498A IPC. Therefore, he has filed the present appeal. Prosecution case, as per record is like this. Deceased Giri Ganga, contracted customary marriage with the Whether reporters of the local papers may be allowed to see the judgment? - 2 - appellant, in October 1982, by writing a deed Ex.PW1/B. Deceased and the appellant lived happily for 4 – 5 months after the marriage but thereafter the appellant allegedly started giving beating to her with a view to pressurizing her to allow him to marry another woman. He forced her to execute a document Ex.PW1/D2 by which the deceased purportedly permitted the appellant to contract a second marriage. A son was also born out of the wedlock. It appears that the deceased was ultimately turned out of the matrimonial home. She filed a petition for grant of maintenance under Section 125 Cr.P.C, in the Court of Judicial Magistrate, which was allowed on 20th May, 1996 and maintenance at the rate of Rs. 100/- per month was granted to her. In October, 1995, appellant wrote a letter to the deceased, asking her to join his society and to give the marriage another chance. She then joined the appellant and started living with him at Dapher, where the appellant was posted in a Government Primary School, those days. On 2nd April, 1998, Thela Ram, a maternal uncle of the appellant, visited the appellant and the deceased at Dapher and told the appellant that his father was sick and was required to be attended upon by someone. Appellant, allegedly asked the deceased to go to his native place in the - 3 - company of Thela Ram to attend to and take care of his ailing father. Deceased was unwilling to go unless the appellant accompanied him. When the appellant insisted, she consumed poison on the morning of 3rd April, 1998. After some time, she started vomiting. Appellant called one Karam Chand, who gave two injections and asked the appellant to shift the deceased to the hospital. Appellant arranged to take her to the hospital at Ani. On the way, she died around 12.30 pm, the same day. Leaving the dead-body on the spot, appellant went to Police Station, Ani, and reported the matter to the police. Parents and other relatives of the deceased were informed. They reached Ani. Father of the deceased PW1 Alpu Ram, went to the police station to lodge report against the appellant, but the then SHO, PW5 Rulia Ram did not record his report. He went to the Police Station again on 5th April, 1998 but the SHO did not pay any heed to his complaint even on that day. Ultimately, he brought the matter to the notice of the Superintendent of Police, who directed the SHO to register a case. PW1 Alpu Ram, father of the deceased then lodged written complaint Ex.PW 1/C to the police. In the complaint, it was alleged that soon-after the marriage, the appellant started pressurizing the deceased to agree for divorce and allow him to go in for second marriage - 4 - and forced her to sign a document to this effect on 20th May, 1996. He further reported that the deceased was thereafter forced out of the matrimonial home but after some time, she was taken back and again on 20th August, 1992, she was given severe beating. He further mentioned in the complaint that the matter was reported to the police and the police had got the deceased medically examined. It was also stated in the complaint that on 25th September, 1995, appellant wrote a letter to the deceased inviting her to join his society and that the deceased then started living with him. But he again started giving beatings to her. He reported that on the night of 2nd April, 1998, the deceased was severely beaten up and killed. Case was formally registered on the basis of this complaint. After the appellant had reported the death of his wife to the police, an entry was made in the Rojnamcha and the dead body was sent to the hospital for post-mortem examination. No injury or bruise mark was found on the body. A provisional opinion was given that the cause of death was poisoning. Viscera was preserved and sent to the Chemical Examination, who confirmed that it was a case of death by aluminum phosphide. Post mortem was conducted on 4th April, 1995 at 10.40 a.m. The doctor opined that the time gap between the consumption of poison and the death, was within - 5 - 12 hours, and the time that elapsed between the death and the post-mortem, was less then 24 hours. Police after conducting the investigation, challaned the appellant. Trial Court charged the appellant with offences, under Sections 306 and 498A IPC. On appellant’s pleading not guilty to the charge, trial was held. Learned trial Court concluded that the appellant had been treating the deceased with cruelty, because he had contracted a second marriage with a lady, named, Leela Devi and with a view to living with his second wife peacefully, he wanted to get rid of the deceased by sending her to his native place and because of that, the deceased took the extreme step. Consequently, the appellant was convicted and sentenced, as aforesaid. I have been taken through the evidence adduced by the prosecution. Also, I have heard the learned counsel for the appellant and the learned Deputy Advocate General Shri P.M.Negi, appearing on behalf of the State- respondent. Father of the prosecutrix, namely, PW1-Alpu Ram, while in the witness-box stated that his daughter had been subjected to physical torture on the night intervening 2nd and 3rd April, 1998 and because of that torture, she consumed poison. He stated that when he saw the dead body of his daughter, he noticed a number of injury marks thereon. Admittedly, Alpu - 6 - Ram was not present at the place of the occurrence on the night intervening 2nd and 3rd April, 1998 and, therefore, he could not have been a witness to the alleged incident of beating of the deceased. There is absolutely no other evidence on record to show that the deceased was beaten up, on the aforesaid night. In fact, there is no evidence of beating to the deceased. Instead there is definite evidence that no beating was given to her as no injury or mark of violence was there on the dead body as per post-mortem report Ex.PW9/A. It is very categorically mentioned in the postmortem report that there were no wounds, bruises etc., on the dead body. Both, PW1 Alpu Ram, father of the deceased and PW2 Chetan Singh, a brother of the deceased, stated that the deceased had not consumed any poison and that she had been beaten up to death by the appellant, but as already noticed, there was no wound or bruise on the dead body as per post- mortem report. Chemical examination’s report and the opinion of the doctor show that it was a case of death by poisoning. PW1 Alpu Ram, lodged report Ex.PW1/C with the SHO on 10th May, 1998 for the first time. Alpu Ram has not offered any explanation for such a long delay, in reporting the matter. No doubt, he says that he had visited the police station on 3rd - 7 - April, and again on 5th April, 1998 but the SHO did not record his report and so, he approached the Superintendent of Police, on whose intervention, a case was registered, but he has offered no explanation for taking so long a time to approach the Superintendent of Police. His son, PW2 Chetan Singh, stated that written complaints had been lodged with the S.D.M. on 4th April, 1998 and the Superintendent of Police on 7th April, 1998. Those complaints are not there on the record. Therefore, the presumption is that either the witness has made a false statement that complaints were lodged with the Superintendent of Police and S.D.M. on the aforesaid dates or if such complaints were lodged, the same have been withheld with the prosecution for the obvious reason that they do not support the prosecution version. Prosecution did not lead any evidence suggesting that the appellant ever gave beating to the deceased or ill-treated her after she re-joined his society in the year 1995. As already noticed, allegation of the father and the brother of the deceased, the fact that she was beaten up on the night preceding the date of her death is not substantiated. Learned trial Court has held that the appellant wanted the deceased to live at his native place on the ruse that his father was sick and required attention, so that he could live - 8 - with his second wife without any nagging by the deceased. There is absolutely no evidence for coming to such a conclusion. Even the father and the brother of the deceased did not say that the appellant wanted the deceased to go to his native place so that he could live comfortably with his second wife. As a matter of fact, evidence on record shows that the alleged second wife of the appellant, named Leela Devi, had not been living with him after 1995 and she even instituted a case against him seeking monthly maintenance for herself and her daughter. The fact is borne out from Ex.PX, a copy of the order of the Magistrate, which is dated 30th November, 2000. Also, there is no evidence indicating that Leela Devi, had been living with the appellant after the deceased joined his society in October, 1995 or even made an attempt to live with him. In view of the above stated position, I am of the considered view that the evidence on record does not prove the charge against the appellant. Hence, the appeal is accepted, judgment of the trial Court convicting and sentencing the appellant, is set aside and the appellant is acquitted. May 6, 2009 ( Surjit Singh ), J. s. - 9 -