IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. Cr. A. No.: 23 of 1999. Decided on: 19.05.2010. ___________________________________________ State of Himachal Pradesh. … Appellant. Versus Brahm Dass. … Accused/Respondent. Coram The Hon’ble Mr. Justice Deepak Gupta, J. The Hon’ble Mr. Justice Rajiv Sharma, J. Whether approved for reporting?1 No. For the petitioner : Mr. Vivek Thakur, Additional Advocate General with Mr. Rajesh Mandhotra, Deputy Advocate General. For the Respondent : Mr. B.C. Negi, Advocate. Deepak Gupta, J (Oral). This appeal, by the State, is directed against the judgment dated 21st September, 1998, delivered by the learned Additional Sessions Judge, Mandi in Sessions Trial No.10 of 1995 whereby the accused was acquitted of having committed offences punishable under Sections 302 read with Section 498-A of Indian Penal Code. 1 Whether the reporters of Local Papers may be allowed to see the judgment? Yes. - 2 - 2. The undisputed facts are that deceased Salochana Devi was married to accused Brahm Dass on 31.5.1993. It is also not disputed that just a little over one month after marriage, on 3rd July, 1993, she committed suicide by consuming poison and died as a result of aluminium phosphide poisoning. 3. F.I.R. was lodged on 5.7.1993 at the instance of PW-1, Mohan Lal, father of the deceased, who had retired as a Head Constable. According to him, he at that time was in Shimla since his wife was admitted in the Indira Gandhi Medical College and Hospital at Shimla. On 5.7.1993 at about 5 a.m. he received a message from his relative that he should return home immediately. Keeping in view the urgency of the message, he returned to his native village Parchu near Sarkaghat. Here he was informed that his daughter Salochana had expired in Referral Hospital at Sarkaghat on 3.7.1993 at 11.15 p.m. According to him, his brother, PW-2 Khayali Ram informed him that when he (PW- 1) and his wife, i.e. mother of the deceased were in Shimla, deceased Salochana Devi had come to her parental home on 30.6.1993 alone. The accused visited the house of his in- laws at about 5 p.m. on 3rd July, 1993. The accused went to first floor of the house where Salochana Devi was present. Both were together for about ten minutes. Thereafter the accused came out and was sitting in the courtyard. After - 3 - sometime, one Rakesh, cousin of the deceased joined the accused and they again went to the room of Salochana Devi and stayed there for 5-10 minutes. Then Salochana came out of her room and went to another room in the ground floor of the house. Later on she came out of this room and went towards the “Bowri” (water source) where she collapsed. 4. The villagers, including PW-3 Drompti Devi, gathered at the spot. Deceased Salochana Devi informed the women that she had consumed poison because her husband was maltreating her. In the meantime an attempt was made by another villager to save Salochana Devi. She was administered salt with water to induce her to vomit. She was then taken in a private jeep to Sarkaghat hospital. They reached the hospital at 8 p.m., but by 11.15 p.m. the deceased had expired. The Doctor at the hospital informed the police station immediately after Salochana was brought that a woman alleged to have consumed poison has been brought to the hospital. Postmortem of the body was conducted and viscera of the deceased was sent for chemical examination. The Chemical Examiner opined that the deceased had died due to aluminium phosphide poisoning. 5. However, the allegation of the complainant was that the accused had caused an injury on the liver of Salochana Devi. The accused was alleged to have treated - 4 - her with cruelty and in fact, he had administered the poison to Salochana Devi. A case under Section 302 read with Section 498-A of Indian Penal Code was duly registered. Initially a case under Section 304-B read with Section 498-A of Indian Penal Code was registered on 5.7.1993 at 8.45 a.m. Later on this case was converted to one under Section 302 read with Section 498-A of Indian Penal Code. Investigation was carried out and after recording the statements of various witnesses accused was challaned and charged with having committed the offences aforesaid. He pleaded not guilty and claimed trial. After trial, the accused was acquitted. Hence, the present appeal. 6. It would be pertinent to mention that the defence of the accused as set out in his statement is that after their marriage the deceased continued to undergo training for tailoring and stitching at a school near her parental home. The version of the accused is that the deceased Salochana Devi used to reside at her parental home from Monday to Saturday and had been joining him on Saturday evening and on Monday she would come back to learn tailoring and cutting at the School, Damsehra near her parental home. The accused stated that when he and his wife returned from Shimla after meeting her mother, he had told her that she should be ready by 5/5.30 p.m. on 3rd July, 1993 when he would come to pick her. When he came home; she was - 5 - sleeping and was not ready and therefore, an altercation had taken place between him and the deceased. He and Rakesh, cousin of the deceased thereafter came out into the courtyard and waited for the deceased presuming that she would be getting ready, but a little later when they went to the room, they saw that Salochana had consumed poison. Thereafter the accused, Rakesh and PW-2, Khayali Ram took Salochana to the hospital in a jeep. Statements of Rakesh and Khayali Ram were recorded by the police alongwith statements of other persons. 7. So far as offence under Section 302 of Indian Penal Code is concerned, even if the prosecution evidence is accepted as the gospel truth, there is nothing to indicate that the deceased was murdered. The prosecution evidence itself shows that the deceased herself had told all the persons that she had consumed poison because her husband wanted to divorce her. Therefore, no case under Section 302 of Indian Penal Code is made out. 8. Now we take-up the question as to whether the deceased was being treated with cruelty by her husband. All the prosecution witnesses including the father of deceased Mohan Lal (PW-1), uncle PW-2 Khayali Ram, sister PW-6 Meera Devi, brothers PW-11 and PW-14 have admitted that the deceased had no complaint against any of her in-laws except her husband. Their allegation is that she used to - 6 - complain to them that the accused would come home drunk and then beat her. It is also alleged by some of the witnesses that there was demand of dowry. Some witnesses alleged that the accused wanted to settle scores with the deceased on account of some incident which had taken place three years ago in which Rajinder was beaten up by the family members of deceased Salochana Devi. Thus, there are three different allegations of cruelty. We shall take-up each of them separately. (I) Demand of dowry: 9. Admittedly the work of accused was of T.V. mechanic etc. In the original statement recorded under Section 161 Cr.P.C., there is no specific complaint for demand of dowry. While appearing in the Court, PW-1 stated that when his daughter came home, she stated that the accused was maltreating her for not bringing a television. This story appears to be false since it would not be difficult for a T.V. mechanic to arrange for a television. This witness has been confronted with his statement recorded under Section 161 Cr.P.C. where there is no mention of a television being demanded. The version of PW-2 is totally different. According to him, when he inquired from Salochana as to how she was being treated in the house of her in-laws, she informed him that after taking liquor, the accused used to maltreat her and tell her that why she was going to watch - 7 - T.V. in the house of her uncle, who had not given her T.V. There is no specific allegation of demand of a television. There is no mention in the statement of the witness about any other sort of cruelty. 10. PW-6, Meera Devi, sister of the deceased brings in a totally new story. According to her, her sister Salochana had informed her that the accused used to maltreat her and force her to go to the house of her god-brother, Rajinder. Deceased objected on the ground that earlier Rajinder had misbehaved with her, but the accused told her that it was he (accused) who misbehaved with her and not Rajinder. The other allegation made by her is that on two occasions when she asked Salochana that why she was not wearing red paranda and red chuni, she (Salochana) told her that the accused was coming home drunk in the night and giving her beatings and demanding divorce from her. There is no allegation of demand of dowry. PW-11 Beli Ram, brother of the deceased also did not talk about any demand of dowry. PW-12, Lila Devi sister-in-law of the deceased, PW-13, Inder Singh brother of the deceased did not talk about any demand of dowry. Therefore, the prosecution has miserably failed to prove that the accused ever demanded dowry. - 8 - (II) Treating with cruelty to take revenge of misbehaviour with Rajinder: 11. At the outset we may mention that this aspect of the case has come out for the first time in the Court and does not find mention in the statements recorded under Section 161 Cr.P.C. Here also, the version of the prosecution witnesses is different. According to PW-1, the deceased told every body that the accused used to claim that he had got married with Salochana Devi only to take revenge and to humiliate her. According to this version, when marriage of Chanchala had taken place about three years earlier, accused and his friend, Rajinder had teased Salochana Devi and thereafter Rajinder was beaten by the family members of Salochana Devi. According to this version when the marriage of accused took place with Salochana Devi, he purposely made Rajinder the god-brother of deceased and maltreated her by forcing her to visit the house of Rajinder which she objected to. PW-1, however, gives a different twist to the story. According to him, the accused used to taunt the deceased and told her that she was having illicit relations with her god-brother, Rajinder. These two versions cannot coexist together. 12. PW-2, Khayali Ram who is the uncle of deceased and living next door does not talk of any ill treatment. He makes no mention of anything having taken place at the - 9 - time of marriage of Chanchala. Meera Devi, PW-6, sister of the deceased has a different story. According to her, accused was forcing the deceased to go to the house of Rajinder, which she did not like. PW-11, Beli Ram has given a version similar to that of PW-1. PW-12 and PW-13 are totally silent with regard to this aspect of the story. Some of the family members have supported this version, but their statements are contradictory to each other and some of the family members are totally silent with this regard. 13. PW-6 Meera Devi has admitted and this has been proved on record that during the one month of marriage, deceased spent most of the time at her parental home and merely for a week or so she lived in the matrimonial home. If such cruelty was meted out to her by her husband in her in-laws home when she went to meet them, she would have complained to her brothers or sisters or her uncle PW-2 Khayali Ram. In view of lack of such complaint, this allegation also does not stand proved. (III) Demand of divorce: 14. The last allegation is that the accused was demanding divorce from the deceased and this led her to commit suicide. In our considered opinion, even if this fact stands proved, this by itself would not amount to cruelty within the meaning of Section 498-A of the Indian Penal Code. A spouse may rightly or wrongly ask for divorce. This - 10 - by itself would not amount to cruelty. Even otherwise we find that this allegation has not been proved. From the evidence it is apparent that immediately after the death of Salochana Devi, statement of Khayali Ram, PW-2 was recorded by the police, which is Ex.DW-4/A. Statement of Chet Ram was also recorded which is Ex.DW-4/B. In these original statements no allegation was made that the deceased had complained that the accused had demanded divorce from her. PW-2 Khayali Ram has been confronted with this statement. So far as Chet Ram is concerned, he has not been examined in Court. 15. Even otherwise, we find that there are glaring lacunae in the prosecution case. F.I.R. was lodged on 5th July, 1993. According to PW-1, on 4th July, 1993 a relative came to the room in I.G.M.C. where his wife was admitted and told that he should return to the village immediately and he left by the night bus and reached home early in the morning of 5th July, 1993. Admittedly, the relative had been informed on telephone. The death took place at about 11 p.m. When the deceased died, admittedly, her brother PW- 11 Beli Ram and her uncle PW-2 Khayali Ram were also present and they would have immediately informed the relative by telephone and in the natural course, the relative would have gone to the hospital immediately or early in the morning of 4th July to inform her father. - 11 - 16. We cannot overlook the fact that the father of the deceased retired as a Head Constable and one of her brother is working in the police department. They knew that a F.I.R. is required to be lodged. They also knew that the deceased had died by committing suicide. Therefore, if there was any complaint by the deceased against her husband, this could have been mentioned in the first report itself. There should not have been any delay in lodging the F.I.R. The possibility cannot be ruled out that this time was used to create evidence against the accused. 17. Another reason which discredits the prosecution version is that the statements Ex.DW-4/A and DW-4/B were purposely withheld from the Court by the prosecution. These statements were recorded before the case was converted into one under Section 302 of Indian Penal Code. As noted above, initially a case under Section 304-B read with Section 498-A was registered. There is not an iota of evidence to show that the deceased was forcibly administered poison. In fact, the prosecution witnesses have stated that the deceased told them that she had consumed poison because the accused wanted to divorce him. The fact that despite this statement, a case under Section 302 of Indian Penal Code was registered also shows that the father and brother of the deceased were forcing the investigating team to act in a particular manner. - 12 - 18. Lastly, the non-examination of Rakesh Kumar, cousin of the deceased is fatal to the prosecution case. He was given up on 11th April, 1996 as being repetitive. We fail to understand how his statement could be considered to be repetitive. It was only he, who was present alongwith the accused when they entered the room of Salochana Devi. This is the version of Khayali Ram, PW-2 also. He was, therefore, the best witness and in fact, the only witness who could have deposed about the true facts immediately after the deceased consumed poison. Therefore, his non- examination is fatal to the prosecution case. Due to his non- examination, the Court would be justified in raising a presumption that in case this witness had been examined, he would not have supported the prosecution case. 19. In view of the aforesaid discussion, we find no merit in the appeal which is dismissed. Bail bonds furnished by the accused are ordered to be discharged. (Deepak Gupta), Judge. (Rajiv Sharma), Judge. May 19, 2010. (sck).