IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 22 of 1995 Reserved on: 21.04.2009 Date of decision: 23.04.2009 State of H.P. ... Appellant Versus Jaggi Ram … Respondent Coram : The Hon’ble Mr. Justice Deepak Gupta, Judge. The Hon’ble Mr. Justice V.K. Ahuja, Judge. Whether approved for reporting?1 No. For the appellant: Mr. Rajesh Mandhotra, Deputy Advocate General. For the respondent: Mr. Ashok Tyagi, Advocate. Per V.K. Ahuja , J.: This is an appeal filed by the State of H.P. under Section 378 Cr.P.C. against the judgment of the Court of Ld. Sessions Judge, Sirmaur at Nahan, dated 1.1.1994, vide which the respondent was acquitted of the charge framed against him under Sections 304-B and 498-A I.P.C. The prosecution story in brief is that deceased Bimla Devi was married to the respondent about four years prior to 3.9.1990. It is the prosecution case that the accused was not satisfied with the dowry brought by his wife. He often used to 1Whether reporters of Local Papers may be allowed to see the judgment? Yes. 2 make demands for money from his in-laws through his wife. At many times, money was brought by the deceased from her parents and was given to the respondent. It was further alleged that on 31.8.1990 the deceased visited her parents and told them that her husband had demanded a sum of Rs.12,000/-. Her parents had assured her that she should go back to her husband and they will arrange for some money. However, on 3.9.1990, it was learnt by the parents of the deceased that Bima Devi had died and this amount of Rs.12,000/- were demanded by him as dowry. On the statement made by Smt. Gillo Devi, mother of the deceased, the case was registered. After investigation, the challan was filed in the Court of learned Judicial Magistrate Ist Class, Court No. II, Paonta Sahib, who committed the case to the learned trial Court, who tried the respondent, leading to his acquittal. We have heard the learned counsel for the parties. We have also been taken through the evidence by the learned Deputy Advocate General, who pointed out that the statements of the parents of the deceased coupled with the testimony of other villagers, is sufficient to prove that the demand of dowry was made by the respondent through his deceased wife. Thus, it was submitted that though the charge under Section 304-B I.P.C. may not have been proved but the charge under Section 498-A stood proved and, therefore, the findings to the contrary are perverse and are liable to be set aside. On the other hand, the learned counsel for the respondent submitted that the evidence led by the prosecution was not sufficient to prove the guilt of the respondent since material 3 improvements had been made by the prosecution witnesses in their testimonies and as there is no merit in the appeal filed by the appellant, the same is liable to be dismissed. We will firstly refer to the testimony of the parents of the deceased, who can be said to be the most material to consider if their statements were sufficient or not to prove the guilt of the respondent coupled with other evidence produced on record. PW-4 Batna Ram, father of the deceased, has stated that after about one month of the marriage, respondent started beating her saying that her father had given insufficient dowry. The accused had started making demands of dowry. His daughter told him about the demands and made a demand of Rs.500/- and again of Rs.1000/- after a few days, which were paid to the deceased. Thereafter again, the deceased came to him and told him that demand for money had been made by the respondent. He had no money and told her that he would be visiting the house of her in-laws on the next day. He further stated that he went to the house of Bimla Devi’s in-laws alongwith PW-1 Sadhu Ram and advised the respondent. Thereafter, his daughter came to his house and told him that the respondent was again harassing her saying that insufficient dowry has been given by them. He sent her back and thereafter went to the village of the respondent with 5-7 persons, namely, Ram Kishan, Neel Ali, Sadhu Ram and Harbilas. Two persons of the village were also taken by him and he went to the accused where members of his family were called. All of them told the respondent to conduct himself properly and they came back. 4 PW-4 further stated that 3-4 days before her death, Bimla came to his house. He was not present in the house. On his return, his wife told him that Bimla had come and told her that respondent had demanded Rs.12,000/- and she had told Bimla that her father would be coming to her on the next day. He came back on 1.9.1990 and was told by his wife that the demand of dowry has now been made, but she was not clear as to how much amount has been demanded. He learnt from his elder son that Bimla, who was present in the fields that the accused had demanded Rs.12,000/- as dowry. PW Mehboob had also come at that time. The deceased told him weepingly that if the amount of Rs.12,000/- was not paid, she would be killed. He further stated that he went to PW-8 Ram Kishan, PW-1 Sadhu Ram and PW-9 Neen Ali and requested for some money to pay the same to respondent but he failed to arrange the money. He told his daughter that he would be visiting with some money after two days. Bimla went back on 2.9.1990 and he received information on 3.9.1990 that she had been killed in the village of her in-laws. He lodged the report, copy of which is Ext. PA. In cross-examination, he admitted that he cannot tell the date, month or year when Bimla came and told about the demand of dowry, again stated that it was after one month of the marriage. He did not call any meeting of the Panchayat. He stated that he cannot tell the dates on which he had paid Rs.500/- and Rs.1000/- to Bimla. He stated that he cannot tell the date or month when he had taken the persons to the house of the accused. It is also clear that after the death of deceased on 3.9.1990 he had lodged the report Ext. PA with the police. A perusal of the same shows that 5 there is no mention of any demands of money or payment of money at earlier occasions. There is only a reference to demand of Rs.12,000/-, which the deceased’s in-laws were demanding for purchasing some land. This report was lodged on 3.9.1990 itself and once a report had also been lodged with the police, the case ought to have been registered on the basis of the said report though supplementary statement of PW-4 Batna Ram or statement of his wife under Section 161 Cr.P.C. could have been recorded after registration of the FIR. However, for the reasons best known to the police they did not investigate the case on this basis, but again recorded the statement of mother of the deceased, namely, PW-3 Gillo Devi under Section 154 Cr.P.C. on 6.9.1990, on the basis of which the case was registered, which statement shall be discussed below. Coming to the testimony of PW-3, she stated similarly of complaint having not brought sufficient dowry and she stated that they used to send her back with whatever money she could arrange. She did not state in her statement the amounts paid at different times or demanded by the respondent. However, she stated about the demand of Rs.12,000/- and they arranged Rs.500/- and paid to Bimla, though her husband had not stated that when this demand was made and Rs.500/- was paid to Bimla and she was sent back. She also admitted her thumb mark on statement Ext. PE, on the basis of which, the case was registered. A perusal of the said statement will show that the respondent used to give beatings to her daughter and used to press for money to be brought by her parents. She also stated that they used to advise the deceased and 6 used to send her back and then stated about the last demand of Rs.12,000/- 3-4 days prior to her death, which she stated that it was demanded as a dowry. From perusal of these statements, it is clear that demands of Rs.500/- and Rs.1000/- were made at times by the respondent, which were paid to the deceased, though there is no specific mention of the month year or probable period when these demands were made. Last demand was of Rs.12,000/- which her husband alleged in the report lodged by him having been demanded for purchasing of land, while his wife alleged that it was demanded as a dowry. There is also some evidence in the form of testimony of PW-4 Batna Ram that he had taken several persons named by him to the house of the respondent and four persons have been named and two other persons from the village were also stated to have been associated. Out of these persons, the prosecution had examined three of them. PW-1 Sadhu Ram has stated that a sum of Rs.12,000/- was demanded from Bimla more than two years back. He also stated that he attended the meetings of Panchayat twice or thrice asking accused not to ask for dowry as Batna Ram was a poor person. He also stated that Rs.12,000/- were demanded by Batna Ram to be paid to the respondent, but he had no money. In the cross-examination, he has stated that that Panchayat was held 2-3 months prior to the death of Bimla but he cannot tell its exact date. He stated that he alongwith other several persons had attended the meeting of Panchayat. He also came up with the statement that the accused had quarrel with Bimla in his presence immediately after the marriage in their village, which was never the case of the father 7 of the deceased. He was a witness to the fact that he has been taken by the father of the deceased to house of the respondent sometime prior to her death and he has stated about one such visit by him with PW-4 Batna Ram. He has mentioned about the meeting of the Panchayat 2-3 times but PW-4 Batna Ram has not stated about any such Panchayat meetings. PW-8 Ram Kishan has stated that he was told by Batna Ram and Gillo Devi that Bimla had been coming to them complaining that she was being beaten by her husband who had been complaining that insufficient dowry has been given by her parents. He stated that on the asking of PW-4 Batna Ram he went to the house of the accused accompanied by Mina alias Meen Ali, Harbilas and others. They advised the respondent to behave properly. He stated that this meeting was held 5-6 months prior to the death of Bimla, but even after that Bimla had been visiting her parents complaining that the respondent has been demanding that she should bring money from her parents’ house. He learnt from Batna Ram that the demand of Rs.12,000/- was made and Batna Ram demanded Rs.5,000/- from him, which he had unable to pay. In regard to the date or month of visit, he could not state except that it was in winter. PW-9 Neen Ali has stated that after few days of the marriage, the relations in between the respondent and deceased became strained, as the accused was complaining that insufficient dowry had been given by her parents and has been demanding more dowry to be brought by Bimla. Batna Ram had come to him and told him to arrange money since his daughter has come to him and was 8 demanding Rs.12,000/-. He stated that he was not having any money. He also stated that Batna Ram had once asked him to accompany him to the house of the accused for bringing good sense to Jangi Ram, but he did not go, though other persons had gone with him. This is contrary to the version of PW-4 Batna Ram that this witness had also gone. PW-2 Nirmala Devi, who is a neighbour of the respondent, who stated that the accused was younger brother of her husband, but as per the evidence it appears that he is not the real brother but a cousin of the respondent. She stated that five days before her death, Bimla had told her that she was going to her father’s village to bring Rs.12,000/-. She came back one day before her death but she did not have any talk with her after her return from her parents’ village. She stated that the accused had beaten her on her return from her father’s village but did not state as to when this beating was given. She admitted that the accused has never made any demand for dowry from Bimla in her presence. Her statement is not of much help to the prosecution. The accused had also examined some witnesses including DW-1 Ram Murti, DW-2 Maroo Devi, DW-3 Virender Singh and DW-4 Dharam Singh, who have stated that there was no complaint to them, nor they learnt about the fact that the respondent and his wife were not having cordial relations. It is also in their evidence that Nirmala was not on talking terms with the family of the respondent. When DW-2 Maroo Devi, mother of the respondent, returned from the fields, she learnt that Bimla Devi had died of stomach pain and she told that Bimla had demanded water 9 from her and she had given the water and a tablet. There were no suggestions to PW-2 Nirmala Devi that on the day the deceased died, she gave water and a tablet. According to the medical evidence on record per the testimony of PW-13 Dr. Vijay Vohra, who conducted the postmortem examination, the cause of death was cardio respiratory arrest, caused by the consumption of aluminuum phosphide. Thus, it is apparent that the deceased had committed suicide and there is no evidence to prove that she was given poison by the respondent. Moreover, in the earlier version made to the police, there is no mention of the fact that the amounts were demanded by the respondent through the deceased or the deceased’s father had gone to several persons to lend him some money to meet the demand of Rs.12,000/-, which evidence was produced subsequently on record. The first version was made on 3.9.1990 and the second report was lodged by Gillo Devi on 6.9.1990. They must be mentally prepared after the shock they suffered due to the death of daughter, but no such complete particulars were given or the facts were mentioned about the demands of dowry except the demand of Rs.12,000/-. It was not necessary to mention all the facts in the FIR but there was sufficient time for them to recollect and mention the facts which would have made their case more reliable. According to the law, every demand made by a husband even from his in-laws cannot be termed as a dowry demand since the husband can demand some money or financial help from his in-laws in case of need but the mere fact such a demand 10 was made cannot be termed as a dowry demand until and unless proved. The learned trial Court had discussed the evidence in detail and had come to a right conclusion that it can not be held that this demand of dowry was made by the respondent. In view of the above discussion, we accordingly hold that there is no merit in the appeal filed by the appellant, which is dismissed accordingly. Bail bonds furnished by the respondent shall stand discharged forthwith. ( Deepak Gupta ), Judge April 23, 2009 ( V.K. Ahuja ), (BSS) Judge