IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Criminal Appeal No. 83 of 1996. Date of decision: 3.3.2010 State of H.P ..Appellant Versus Amar Singh. ..Respondent Coram: The Hon’ble Mr. Justice Deepak Gupta, J. The Hon’ble Mr.Justice Sanjay Karol, J. Whether approved for reporting ? No For the appellant: Shri Vivek Singh Thakur, Additional Advocate General with Sh.R.M.Bisht, Dy.Advocate General. For the respondent: Mr.Vinay Thakur, Advocate. _____________________________________________________ Deepak Gupta, J, (Oral). This appeal by the State is directed against the judgement of the learned Sessions Judge, Bilaspur in Sessions Trial No.23 of 1992, decided on 20.1.1995 whereby he acquitted the accused of having committed an offence punishable under Sections 498-A, 325 and 307 of the Indian Penal Code. 2 The undisputed facts of the case are that PW/5 Smt.Sarita Devi was married to the accused. The complaint in question has been filed after seven years of the marriage. According to the prosecution, after 2-3 years of the marriage, the accused started maltreating his wife PW/5 Sunita Devi alias Sarita Devi since she could not give birth to any child and he used to ask his wife to give him a divorce. A month prior to the occurrence which took place on 27.5.1991, the accused threatened his wife PW/5 and obtained her signatures on four blank papers and threatened to use them to obtain divorce. PW/5 informed about this fact to PW/3 Jeet Ram, uncle of the accused and her own brother PW/2 Kanshi Ram. A Panchayat was called by the brother and father of PW/5 and the accused was asked to bring the papers on which he had got the signatures of his wife. The accused stated that he had torn the said papers but according to PW/5, her husband had torn only three papers and had kept a signed stamp paper with him. In the Panchayat, a writing Ext.PF was executed which was also signed by the accused. 3 According to the prosecution on 27.5.1991 the accused alongwith PW/5 had gone to the jungle to cut the bushes. The accused asked his wife to cut the bushes which were near the ‘Dhank’ (steep slope). The wife refused to do so but the accused forced her to cut the bushes near the Dhank. While she was doing so, he gave her a push and she fell down and sustained injuries. She was brought to the house of her inlaws by PW/7 Jaimal who heard her cries. Thereafter, according to the prosecutrix, she informed PW/3 Jeet Ram, her father Arjun Ram (since deceased) and her brother Kanshi Ram, PW/2 about the incident when they visited her. A report in this regard was lodged by PW/2 Kanshi Ram on 31.5.1991 at about 4.00 p.m and on the basis of this report, an FIR Ext.PE was lodged. After recording the FIR, investigation was conducted by the police. The statements of various witnesses were recorded. The footwear of PW/5 were taken into possession. PW/5 was also got medically examined on 31.5.1991 when she was referred for X-Ray examination. PW/8 Dr.N.K.Sankhyan on the basis of the Skiagrams came to the conclusion that the prosecutrix 4 suffered serious injuries and right shoulder clavicle has been fractured. The writing Ext.PF was taken into possession by the police and on the basis of this evidence, a report was filed against the accused. Since the case was triable by the Court of Sessions Judge, the same was committed to the Sessions Court. The accused was charged for the offences detailed here-in-above. After trial, the accused has been acquitted. Hence the present appeal. The case against the accused can be divided into two parts. The first part is with regard to the allegation that the accused treated his wife with cruelty and has thus committed offence under Section 498, CPC. The second part relates to the incident which took place on 27.5.1991 where according to the prosecution, the accused attempted to murder his wife. PW/5 while appearing in the witness box states that after 2-3 years of the marriage, the accused started maltreating her as she could not give birth to any child and used to say that she should give him divorce. Other 5 than this statement, there is no other allegation of any specific act of cruelty. The version of PW/2, brother of Sunita Devi, is entirely different. According to him, Sunita Devi told him that she was being maltreated and harassed for having brought insufficient dowry and not giving birth to any child. He also stated that on 3-4 occasions, Panchayats were held in this regard and the accused was summoned. PW/1 Prittam Singh was a member of the Gram Panchayat. He stated that on two occasions, Panchayat was held at the instance of the father of the victim and the accused one year prior to the incident. According to him, the father of Sunita Devi complained that her mother-in-law was harassing her daughter. His version is that no allegation of cruelty or maltreating was leveled against the accused. Though this witness was declared hostile and was cross-examined by the prosecution nothing material has been extracted in his cross- examination. 6 PW/4 Rishi Ram belongs to the same village as Sunita Devi. He only talks about their strained relations and nothing more. PW/6 Budhi Singh, Up-Pradhan of the Panchayat has stated that Arjun Singh, father of Sunita Devi had complained to him that the accused used to harass and maltreat his daughter. He thereafter asked the father of the accused not to maltreat her. He in his cross-examination could not give the details about the alleged maltreatment meted out to Sunita Devi. This is the entire evidence in respect of the offence committed under Section 498, CPC. No specific act of cruelty has been levelled against the accused. Other than making a vague and general allegation that she was maltreated, no specific instance of beating or cruelty of any physical or mental type has been alleged. When a charge of cruelty is levelled, it is for the prosecution to establish some specific instances of cruelty and then only the accused can be convicted. Another factor is that the version of PW/5 and her brother Kanshi Ram as to the genesis of the maltreatment is totally 7 different. Whereas according to PW/5, she was being maltreated only on account of the fact that she could not give birth to a child, according to her brother, she was being maltreated because of bringing insufficient dowry. This has not been stated by Sunita Devi and, therefore, these two statements do not corroborate each other. Hence the learned Trial Court rightly acquitted the accused for this offence. Coming to the issue with regard to the incident which took place on 27.5.1991, the FIR in question was lodged on the report of the father and brother of the injured on 31.5.1991. There is a delay of four days in lodging the FIR. Delay by itself may not be fatal but the same must be explained and if there is no valid explanation for the delay then it casts a doubt on the prosecution version. PW/7 Jaimal is the first person who reached the spot on hearing the cries of PW/5. According to him, PW/5 was unconscious and he carried her back to the house of her in-laws. On the way, he met the accused and his brother. This belies the version of the prosecutrix 8 that she was pushed by her husband otherwise how could PW/7 have met the accused on the way. It was also admitted by the brother of PW/5 that it was the accused who came to inform him and his father about the fall of Sunita Devi and the injury suffered by her on the evening of accident itself. This also militates against the accused being an offender. Otherwise he in normal course would not have gone to inform his inlaws about the incident. There are two versions with regard to the state of consciousness of PW/5. The initial version of the prosecution, as set out in the FIR, is that PW/5 had informed her brother and father that she had been pushed by the accused on the next day, i.e. on the morning of 28.5.1991. The explanation of Kanshi Ram is that he wanted his sister herself to lodge the complaint and since she was going to the hospital, the complaint could not be lodged. This explanation does not hold water. According to the prosecution itself and even as per the testimony of PW/5 and PW/2, on 28.5.1991, PW/5 was taken to the hospital at Ghumarwin. The police station is situated in Ghumarwin itself. There is nothing 9 which prevented PW/5 or her brother PW/2 or her deceased father for lodging the complaint at Ghumarwin. This totally falsifies the version of the brother of Sunita Devi. To get out from this situation, the prosecutrix has now concocted a new story. According to her, she was unconscious still 31.5.1991 and regained consciousness on 31.5.1991 and thereafter told her father, brother and Jeet Ram about this incident. This version is not only contrary to the testimony of PW/2 Kanshi Ram and PW/3 Jeet Ram who is an uncle of the accused but is also not supported by the other contemporaneous material on record. As per the statement of PW/9 Dr.N.K.Verma, the patient, i.e., PW/5 herself informed him that on 28.5.1991 she had gone to the hospital at Ghumarwin where she was advised to go to District Hospital at Bilaspur. However, she remained at Ghumarwin Hospital and was treated at there. On 30.5.1991, she went to the Public Heath Centre at Berthin and she remained there for one day and then was referred to the District Hospital, Bialspur and came here. For reasons best known to the 10 prosecution, no record has been produced from the hospital at Ghumarwin or from the Public Health Centre at Birthin. This record would have clearly shown whether the patient was conscious or not. Even in the MLC recorded on 31.5.1991, the history as given by PW/5 to the doctor is that she was given beating by her husband. There is no mention of her being pushed from the hillside. Be that as it may, the clear facts are that from 27.5.1991 to 31.5.1991, no case was made out against the accused of having thrown his wife from the ‘Dhank’. Even PW/5 in her statement has admitted that a lot of village ladies came to meet her. None of these ladies has been produced in the Court. When any person visits another to lookafter the person’s well being, it is normal human conduct to ask how that person has sustained injuries. Over four days, a lot of independent witnesses had visited the prosecutrix. None out of these witnesses has been produced. This also casts a doubt on the prosecution story. It is not disputed that in fact the relations between the accused and Sunita Devi were strained. Such strained relations, no doubt, can be the motive of 11 committing an offence but this can equally be a motive for falsely roping the husband in such a case. In the present case, if the accused had actually pushed his wife, PW/5 from the ‘Dhank’ and if she had told this fact to her father and brother and even if they would not have immediately gone to the police, they would have made a complaint to the Panchayat at least. Admittedly, on previous occasions in respect of incidence of harassment and maltreatment, Panchayats had been called. Therefore, we see no reason why when PW/5 had suffered serious injuries, no effort was made to inform the Panchayat members if not to the police. This lends credence to the defence version that PW/5, her brother and father conspired to lodge a false complaint against the accused. It would also be pertinent to mention here that PW/3 no doubt is an uncle of the accused and has deposed against him, however, in cross-examination he has stated that he separated from the father of the accused thirty years back and has boundary disputes with the father of the accused. Therefore, his relations with the 12 accused were such that his testimony cannot be accepted. No other independent witnesses has supported the prosecution version. In view of the above discussion, we find no merit in the appeal which is accordingly dismissed. Bail bonds, if any, furnished by the accused are ordered to be discharged. ( Deepak Gupta ) Judge 3 March, 2010 (Sanjay Karol) (m) Judge