1 HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.Appeal No.238/99 Decided on: July 23, 2010 State of H.P. …Appellant. VERSUS Narinder Kumar & ors ….Respondents. Coram The Hon’ble Mr. Justice R.B.Misra, Judge. The Hon’ble Mr. Justice V.K. Sharma, Judge Whether approved for reporting?1 Yes For the Appellant: Mr.Rajinder Dogra, Addl. AG with Mr.Anil Jaswal, Dy.AG. For the respondents: Mr. Hoshiar Kaushal & Mr. Sandeep Chauhan, Advocates R.B.Misra, Judge (Oral) The present criminal appeal has come up for consideration after the leave to appeal has been granted under Section 378(3) of the Code of Criminal Procedure, in reference to judgment dated 20.3.1999, passed by learned Additional Sessions Judge, Kangra at Dharamshala in Sessions Case No. 37-N/98, thereby acquitting both the respondents / accused persons for the offences under Sections 302, 304-B, 498-A, read with section 34 of the Indian Penal Code. 2. In order to adjudicate the present criminal appeal, it is necessary to give the factual background of the case. Nisha Devi Whether the reporters of the local papers maybe allowed to see the judgment? 2 died on 17.5.1998 due to 100 % burn injuries in the house of her In- laws. Husband Narinder Kumar, in an endeavour to extinguish fire, was also suffered 20 to 25 % burn injuries. Nisha (deceased) was taken to the hospital in burn condition and ultimately she died. Narinder Kumar, husband, Raghu Nath Sharma, Father in law and Dwarki Devi, mother in law of deceased were charged for the aforesaid offences. 3. In order to prove its case, prosecution has examined as many as 13 prosecution witnesses, whereas in their statements under Section 313 Cr.PC, accused persons denied the prosecution case. 4. PW-1 Dr. J.C. Nagpal has examined the victim deceased Nisha on 17.5.1998 at 2.15 PM in reference to the police request Ext PW-1/A and found 100 % burns and opined that death was due to burn injuries.PW-2 Yadwinder Kumar, the uncle of deceased. PW-3 Chanchla Devi, Aunt of deceased. PW-4 Gita Devi, Aunt of deceased. PW-5 Parmand Nand, Registered Medical Practioner, PW- 6, Kirpal Singh, PW-7, Chama Devi, PW-8, Dhani Ram, Up Pradhan of Gram Panchayat, PW-9 Roshan Lal, ASI, who recorded the FIR, PW-10 Jagrup Singh, HC, PW-11, Parkash Chand, SI, PW-12 Inspector Jagdish Chand and PW-13 Dr. R.K. Gauta, were examined by the prosecution. 5. PW-5 Parma Nand, Local Doctor, found the deceased in a burnt condition, has, however, refused to treat and advised the husband-accused no.1 to take her to the hospital. 6. PW-13 Dr. R.K. Gautam has stated that Nisha Devi was admitted in emergency ward by husband-accused no.1. In his cross 3 examination also, he has admitted that accused No.1 was also admitted in the hospital, who suffered burn injuries on his person to the extent 20 to 25% and remained there for the treatment for month. 7. In order to bring the conduct of the accused under Section 304-B of IPC, endeavour was made on the part of the prosecution to reply on the testimony of PW-2, Yadbinder Kumar, PW-3 Chanchala Devi and PW-4 Geeta Devi, the related witnesses who have not seen the occurrence. To support the prosecution case, PW-2, Yadbinder Kumar, uncle of the deceased has stated that twice or thrice after marriage, the deceased visited the place of PW-2 and marks of violence/beatings were observed on her body. However, deceased had never disclosed the cause of such injury and once she disclosed that it was due to beating. According to PW-2, deceased had stated that accused persons were giving beatings to her and were pressurizing her to get the property of her parents transferred in their names or to make the payment of the price of said property. PW-2 has persuaded accused No.1 not to beat the deceased and PW-2 has also stated that when he visited the house of accused after one month of the marriage of Nisha (deceased) and accused No.1, accused No.3 was quarreling with Nisha. The matter was got compromised between the two by PW-2 and letter Ex PW-2/A was brought in evidence. We have gone through the contents of the letter. It only indicates that Nisha (deceased) had written letter asking for sending black and white television which she was using earlier. However, she was not insisting upon for getting the same. She also demanded Rs. 5000/- as loan with the promise that the same would be returned by her after few months. She also indicated in the said letter that earlier letter was 4 not responded by the uncle. However, this does not reveal that demand of dowry was ever made by the accused persons. 8. PW-3 Smt. Chanchala, Aunt of the deceased, has stated that when she visited along with her husband to the house of accused, Nisha (deceased) complained her that the accused persons were treating her with cruelty for want of dowry. Deceased had also stated that the accused persons were pressuring her to get the share of her father in property. PW-3 has also stated that she requested the accused if they were unable to keep the deceased in their house comfortably, they should send the deceased to place of her uncle. 9. PW-4 Gita Devi, another aunt of the deceased has stated that no dowry was demanded by the accused at the time of marriage or before the marriage. Nisha visited her house 3-4 times after her marriage till her death. Initially she did not complain against the accused and subsequently the deceased made a complaint to PW-4 that her husband was given beatings to her and she was being maltreated by accused No.2 and 3, on the ground that whenever she demanded anything, the same did not brought by accused No.1 without the permission of mother-in-law of the deceased. However as per the testimony of PW-4, deceased was making complaint that her husband was having illicit relations with a lady in the neighbour-hood and whenever she objected to, she was given beatings. 10. On the scrutiny of the prosecution witnesses and material on record, whatever could be derived, may be from the testimony of PW-2, PW-3 and PW-4. However, the aspect of mal-treatment, cruelty and harassment could be derived from the testimony of PW-2, PW-3 and PW-4. However, such treatment could never be for demand of 5 dowry as is reflected from the testimony of PW-4. PW-2 in his cross examination has specifically stated that nothing was given to Nisha in dowry and no single word was indicated that accused ever demanded dowry from Nisha. 11. PW-3 in her examination-in-Chief has stated that the accused persons were treating her with cruelty for want of dowry, but in her cross examination, it has been stated by her that at the time of marriage, neither dowry was given nor it was demanded by the accused persons. PW-3 Chanchala Devi further stated that the uncles of Nisha were not so rich and were not in a position to give dowry and such fact was known to the accused persons. PW-3 has specifically stated that it was settled prior to the marriage that nothing was to be given or taken by either of the side. 12. PW-4 in her testimony has not even whispered the single word that Nisha was being maltreated by the accused persons for demand of dowry. As per the testimony of PW-4, neither any dowry was given nor demand was made by the accused persons before or after marriage. The testimony of PW-2 and PW-3 has been falsified by PW-4. The aunt being another witness has only indicated that the deceased Nisha was being maltreated by accused whenever she demanded anything as the accused No.1 was not bringing anything demanded by her without the prior permission of mother-in-law of the victim. 13. Statements of PW-2, PW-3 and PW-4, if taken together, are not inspiring to indicate that the deceased Nisha was treated with cruelty or was ever beaten for demand of dowry. Statements of PW-2, PW-3 and PW-4, on the point of cruelty of general nature, differs from 6 each other. The story of beatings on account of pressure for bringing the share of her property from PW-2 or other uncles of the deceased is not corroborated by PW-4 Gita Devi or any other plausible evidence on record produced by the prosecution. PW-4 has deposited different type of cruelty complained by the deceased which does not find place in the statements of PW-2 and PW-3. 14. PW-7 Chama Devi, immediate neighbourer of the accused and deceased has stated that she head the cries from the house of accused Nisha Devi, upon which she rushed to the house of accused. Further that the dead body of Nisha was on fire and accused No.1, her husband, was extinguishing the fire. By seeing the said occurrence, accused No.3 suffered fit and became unconscious. A local doctor was called. In her cross examination PW-7 has stated that accused No.1, husband of the Nisha (deceased) tried to extinguish the fire by putting a chaddar and when the fire could not be extinguished with the same, he put a blanket on Nisha deceased and extinguished the fire. 15. Learned Addl. Sessions Judge, while relying on the decision of Supreme Court in State of Assam Vs Mafizuddin Ahmed (1983)2 SCC-14 has indicated that the extent of 20 to 25% burn injuries on a person who endeavoured to extinguish the fire on victim could a positive factor in favour of the accused. The conduct of the husband, who received burn injuries upto 20 to 25 % in his endeavour to extinguish the fire of his wife Nisha (deceased), shows his innocence and indicates that accused is to be protected in view of the decision of Supreme Court in State of Punjab Vs. Gurdip singh and others (1996) 7 SCC 163. Though, undisputedly, Nisha (deceased) 7 had died due to serious burn injuries in the house of her In-laws and while extinguishing fire, her husband, namely, Narinder Kumar, accused No.1 had also sustained injuries upto 20 to 25% and he himself was admitted in the hospital for a month for treatment, yet the cause of death is by burning, but cannot be said to be construed in reference to the testimony of prosecution witnesses that Nisha was burnt at the instance of accused directly or by creating cruelty to her or by virtue of maltreatment or for the demand of dowry. 16. On analysis of the prosecution witnesses and material on record, learned Addl. Sessions Judge has rightly come to the conclusion that the prosecution has failed to bring home guilt to the accused. In our considered view, prosecution has failed to prove its case beyond reasonable doubt. we find no scope for interference in the impugned judgment and the Criminal Appeal, being devoid of merit, is accordingly dismissed. 17. Bail bonds, furnished by the respondents, are hereby discharged. ( R.B.Misra ), J. July 23 ,2010 ( V.K.Sharma ), J. (sl) 8