1 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 298 of 2002 Decided on October 19, 2011 State of H.P. …Appellant. Versus Jaipal Singh and others ...Respondents. Coram The Hon’ble Mr. Justice R.B. Misra, Judge. The Hon’ble Mr. Justice Surinder Singh, Judge. ¹Whether approved for reporting? Yes. For the appellant: Mr. R.K. Sharma, Senior Additional Advocate General, with Mr. Rajinder Dogra, Additional Advocate General. For the respondents: Mr. N.S. Chandel, Advocate. Surinder Singh, J. (oral) The State has challenged the acquittal of the respondents for the offences punishable under Sections 498-A, 304-B and 306 of the Indian Penal Code. 2. Heard and gone through the evidence on record. 3. The admitted facts of the case are as follows:- (i) Smt. Sharda, daughter of PW-1, Sh. Lehri Ram and PW-2, Smt. Kunti Devi was married to respondent No. 1, Jaipal Singh on 6th December, 1997. (ii) On 26th June, 1998, i.e., after about six months, she is alleged to have committed suicide by drousing 2 herself in kerosene oil and putting fire, at her matrimonial village Duhak. (iii) She was immediately removed by the accused persons to the hospital, but was declared dead. The doctor informed police and this information was recorded in daily diary Ex. P-F. Police had also prepared the inquest report. PW-5, Dr. Vishv Bandhu Bhardwaj conducted the autopsy of the dead body on 27th June, 1998 at about 4.30 P.M., at Sub Divisional Hospital, Nurpur. He noticed extensive burns present all over the body of varying degrees. There was scorching of skin due to vesication present over some portion of upper limbs. (iv) The ornaments on the dead body were found intact, which were sealed in a cloth parcel Ex. P6. Her burnt clothes were sealed in separate parcel Ex. P5. (v) The police visited the spot and took into possession a steel glass from the place where the dead body of the deceased was lying along with the mat Ex. P2 and some shreds of cloth Ex. P3. (vi) The stove Ex. P4 was also taken into possession from the kitchen vide memo Ex. PB. The police prepared the site plan Ex. PJ of the place of incident. The police also took the photographs Ex. P-15 and P-16 of the room, where the alleged suicide was committed and also of the dead body in the hospital. The dead body was released to her 3 parents for last rites. 4. On 27.6.1998 the police recorded the statement Ex. PA of the father of the deceased under Section 154 of the Code of Criminal Procedure, vide which he apprehended murder of his daughter by her husband, who had come on leave from army service and his mother, brother and sister (accused No. 2 to 4) respectively. It ultimately culminated into the present FIR under Section 302 read with Section 34 of the Indian Penal Code. The police during the investigation after recording the statement of PW-2, Smt. Kunti Devi, converted the case as a dowry death and abetement under Sections 304-B, 498-A and 306 of the Indian Penal Code. 5. It is alleged that after the marriage of the deceased with respondent Jaipal Singh, the respondents raised demand of dowry to get Scooter and Gas from her parents. Off and on, they had been also passing remarks for bringing less dowry. The father of the deceased was a class-IV employee and his son was serving in the army. It is also the case of the prosecution that after the marriage, before Baishakhi, the deceased had visited the parental house once or twice and lastly during Baishakhi, she is alleged to have made the complaint to her parents and her sister with respect to indifferent attitude of the respondents and passing the sarcastic remarks for bringing 4 less dowry and also not providing Scooter and Gas. After two months thereof, she finished her life by burning. 6. The police recorded the statement of witnesses and came to the conclusion that the respondents were involved in the said offences, as such the challan was presented in the Court for their trial. 7. The respondents denied their guilt to the charges framed against each of them and claimed trial. 8. To prove its case, the prosecution examined its witnesses and recorded the statements of the parents of the deceased (PW-1 and PW-2) and also sister of the deceased (PW-4), named, Smt. Sureshta Devi, but however gave up the alleged independent witnesses Smt. Kanta Devi and Naresh Kumari, who had initially supported the case of the prosecution with respect to the allegations made by the parents of the deceased during investigation. 9. The respondents were also examined under Section 313 of the Code of Criminal Procedure. They denied the circumstances, which were found attendent upon each of them and pleaded innocence. 10. Since there was an allegation that the parents of the deceased were not informed about her death and the case of the respondents has been that they had immediately removed the deceased to the hospital for medical treatment, as such they passed on the message to 5 her parents through Sh. Ashwani Kumar, who further informed Mohinder Singh to convey the message to her parents. When called upon to enter into their defence, the respondents examined Sh. Ashwani Kumar, aforesaid as DW-1 to probablise their version or their plea on this score. 11. At the end of the trial, the learned trial Court did not find cogent and reliable evidence with respect to the alleged cruelty proximate to the time of the suicide having been committed by the deceased as also of dowry death or abetement, as such they were acquitted, hence the present appeal. 12. Sh. R.K. Sharma, learned Senior Additional Advocate General for the state forcefully argued that the learned trial court wrongly brushed aside the statements of the parents and sister of the deceased with respect to the cruelty. The respondents were responsible to create such circumstances against the deceased that she was forced to commit suicide and further that once the cruelty stands proved by virtue of Section 113-B of the Evidence Act, it is mandatory for the court to draw a presumption against the accused to hold them guilty under Section 304- B of the Indian Penal Code. Since the learned trial court did not evaluate the evidence of the prosecution in the right perspective, the acquittal of the accused persons is 6 unwarranted. 13. Contra, Sh. N.S. Chandel, learned counsel for the respondents supported the impugned judgment of acquittal passed by the learned trial court. 14. We have given our thoughtful consideration to the rival contentions of the parties and have carefully, cautiously and meticulously re-evaluated the evidence on record. 15. First and foremost, we would like to point out that except the parents and sister of the deceased, there is no other person, who deposed against the respondents with respect to the alleged demand of dowry or cruelty. There are also contradictions with respect to the visit of the deceased in the house of her parents and regarding making the complaint as stated by them. PW-1, Sh. Lehari Ram, father of the deceased stated that the deceased remained in their house during the Baishakhi for three days, whereas her mother PW-2, Kunti Devi stated that she had stayed for a month, whereas PW-4, Smt. Sureshta Devi, sister of the deceased is not sure as to how many days she stayed with them. The above contradictions assume importance while considering the case of prosecution qua the allegations made, to come to a rightful conclusion whether it was proximate to the time of her death. 7 16. Admittedly, there was no demand of Scooter or Gas before marriage, at the time of marriage and even 'soon after' the marriage from the parents of the deceased by the respondents. As per prosecution story, the deceased made the complaint that prior to Baisakhi deceased had visited the parental house one or two times and after having assured her to provide the same after some time, she returned to her matrimonial house. Surprisingly, there is no complaint made by the parents of the deceased either to the police or Panchayat or any other respectable person of the society. The deceased was educated and has studied up 10+2. There is also no communication made by the deceased to her parents through letters or by any other means to lend strength to the truthfulness of the allegations made after the death of the deceased. After her death when the dead body was handed over to her parents, the very next day her father expressed his suspicion regarding murder committed by the respondents. Further the allegation that the respondents did not inform the parents or any other person of the family with respect to the cause of death or death is also proved to be wrong, in view of the statement of Ashwani Kumar (DW-1). Thus, the defence version stands probablised. Significantly, the alleged independent witnesses of the cruelty etc., namely, Smt. Kanta Devi 8 and Naresh Kumari, who had initially supported the case of the prosecution as per their statements under Section 161 Cr.P.C, during the investigation, were not examined on the ground that they have been won over by the accused persons without any material on record. Except the statements of the parents and sister of the deceased, there is nothing on record which can be accepted as gospel truth on the face value, because of the above mentioned conditions and for want of the corroboration with respect to the allegations of the cruelty. 17. Further, the alleged cruelty has to be close proximity of time and there should be continuous harassment, physical and mental, so as to force the deceased to commit suicide. The deceased is alleged to have complained about the alleged demand of dowry to the parents during Baisakhi, but she is alleged to have committed suicide on 26.6.1998, i.e., after about two months, cannot be said to be in close proximity of time. Once it is held that there is no cogent and reliable evidence with respect to the cruelty and demand of dowry, no presumption under Section 113-B of the Evidence Act can be drawn against the respondents for the offence of dowry. 18. Thus, for the aforesaid reasons, the prosecution cannot be said to have proved the case against the 9 respondents beyond reasonable doubt and the findings of acquittal recorded by the learned trial court are borne out from the evidence on record, which require no interference. The State appeal is accordingly dismissed. 19. The respondents are discharged of their bail bonds entered upon by them at any time during the proceedings of this case. Send down the records. (R.B. Misra) Judge October 19, 2011 (Surinder Singh) (KRS) Judge