IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Criminal Appeal No. 78 of 2002 Judgment reserved on : 22.6.2011 Date of Decision : September _14_ , 2011 State of Himachal Pradesh Appellant Versus Umardeen Respondent Coram: The Hon’ble Mr. Justice R. B. Misra, Judge The Hon’ble Mr. Justice Sanjay Karol, Judge. Whether approved for reporting?1 Yes. For the appellant : Mr. R. K. Sharma, Senior Addl. Advocate General with Mr. Rajinder Dogra, Addl. Advocate General. For the respondent : Mr. Anoop Chitkara, Advocate. Justice Sanjay Karol, J. For an offence, which is alleged to have been committed on 10.12.1997 accused was put to trial. In terms of judgment dated 27.9.2001 passed by learned Sessions Judge, Chamba Division, Chamba, H.P. in Sessions Case No. 29 of 1999, titled as State of H.P. versus Umardeen, accused stands acquitted of the charged offences. 2. It is the case of the prosecution that the accused and his wife Smt. Kamla Devi (deceased) were residing at Merpur, Whether reports of Local Papers may be allowed to see the judgment? 2 Pargana Sherpur, P.S. Khairi, District Chamba along with their children. At that time accused who is working in the Police Department of Government of Himachal Pradesh was posted in Chamba District. According to Smt. Rattani Devi (PW-1) mother of the deceased and the neighbour who also is the landlord of the accused Sh. Yashpal Sharma (PW-4), relations between the accused and the deceased were not cordial. It is the prosecution case that accused used to cause mental /physical harassment and cruelty to the deceased. He also did not maintain her. As per the dying declaration (Ext. PJ) recorded on 11.12.1997, on 10.12.1997 at about 8.30 p.m. deceased inquired from the accused as to where he had spent the money which he had withdrawn from his salary. This led to an argument and the accused slapped her and asked her to leave the children at home. At that deceased bolted her children and the accused inside the room and after alone going into the kitchen, poured kerosene oil and set herself on fire. When she cried PW-4 came running. He unbolted the door of the room where the accused was with his children. He then poured water on the deceased to save her. Thereafter he and the accused took the deceased to the Police Chowki at Bakloh. Since no assistance was rendered there, deceased was taken to the Primary Health Centre at Kakira where she was attended to by Dr. P. N. Bihari (PW-2). The deceased was suffering burn injuries to the extent of 50% to 60% and her condition was critical hence she was referred to Civil Hospital at Dalhousie where she was admitted on 10.12.1997. Here she was 3 attended to by Dr. N. K. Soorya (PW-3). Her statement (Ext. PD) was recorded. Her condition being still critical, she was referred to the Zonal Hospital at Dharamshala where she was admitted on 11.12.1997 and attended to by Dr. S.C. Kaushal (PW-7) and Dr. L. B. Purohit (PW-8). On 11.12.1997 Naib Tehsildar Dharamshala Sh. H. S. Bhatta (PW-9), recorded her statement (Ext. PJ). Her condition did not improve therefore PW-8 referred her to I.G.M.C. Shimla for further treatment. On 12.12.1997 accused got the deceased discharged from the hospital at Dharamshala. Eventually deceased expired in her village on 18.12.1997. Based on the statement (Ext. PJ) and ruka taken by Constable Kushal Singh (PW-10), F.I.R. No. 211/97 (Ext. PF) dated 12.12.1997 was registered at Police Station Dalhousie. Investigation of the case was carried out by HC-Rajesh Kumar (PW-11) and ASI-Narender Kumar (PW-12). From the kitchen of the accused certain items were taken into possession by the police. Investigation revealed that the accused had been subjecting his wife (deceased) to cruelty and on 10.12.1997 accused caused mental and physical cruelty to his wife which prompted her to commit suicide by setting herself on fire. 3. Challan was presented in the Court for trial and the accused was charged for having committed offences punishable under Sections 498-A and 306 of the Indian Penal Code to which he did not plead guilty and claimed trial. 4. In order to prove its case prosecution examined 12 witnesses and the statement of the accused under Section 313 4 Cr.P.C. was also recorded in which he took up the plea of innocence and false implication at the instance of his in-laws. However no evidence was led by the accused in his defence. 5. The trial Court acquitted the accused of the charged offences. Hence the present appeal. 6. With regard to the charged offences we find that prosecution has not been able to prove its case, beyond reasonable doubt, by leading clear, cogent, reliable and convincing material and legal evidence. As such his acquittal for the charged offences needs to be upheld. 7. As per the version of PW-12, he was posted in the reporting room at Dalhousie. While Smt. Kamla Devi (deceased) was admitted in the hospital at Dalhousie, on 11.12.1997 he was verbally directed by the S.H.O. to record her statement. He moved application (Ext. PC) and Dr. N.K. Soorya (PW-3) certified fitness of the patient to make her statement vide report (Ext. PC/1). Her statement (Ext. PD) bearing endorsement of the Doctor was thus recorded by him. The same is got translated to the following effect:- “Statement of Kamla Devi w/o Umardin, age 35 years, caste Muslim, r/o Merpur, Pargana Sherpur, PS Khairi, Distt. Chamba. I am resident of abovesaid place. My husband Umardin is in police department and posted at NHPC, Banikhet. Yesterday i.e. 10.12.1997 he was at home. My marriage had taken place 7-8 years back. Ours was a civil marriage and performed at my own wish. Yesterday around 8.30 pm my husband and children 5 were in the bed room while I was cooking in the kitchen. I was cooking on the stove. Meantime the stove ran out of the oil and I filled the oil in it. As soon as I pumped the stove and lit it with match stick, suddenly oil spilled from the stove and the oil cane turned over, which was kept adjacent. As a result, my shirt caught fire from the stove flame and the conflagration engulfed my body. On my crying, my husband and our house owner Master Yashpal came over there and my husband put out the fire by pouring water. Thereupon, my husband and Yashpal took me to Kakira for treatment. I have heard the statement which is correct. Sd/- Kamla” [Emphasis supplied] 8. There is no dispute that the deceased and the accused were married for 7 – 8 years prior to the alleged incident. There is also no dispute that the deceased had suffered burn injuries and was first taken to the Primary Health Centre at Kakira where she was attended to by Doctor (PW-2) who referred her to the Civil Hospital at Dalhousie where she was attended to by Doctor (PW-3). It also cannot be disputed that her condition was critical as she had suffered burn injuries to the extent of 50% - 60%. PW-2 has testified that at Kakira deceased was unconscious and her pulse was not recordable. However at Dalhousie she was found to be in a conscious state of mind and accordingly her statement (Ext. PD) was recorded by PW-12. Since she was critical she was referred to Zonal Hospital at Dharamshala where she was admitted on 11.12.1997 6 itself. According to the prosecution, in the hospital at Dharamshala her statement (Ext. PJ) was recorded by PW-9. The same is got translated to the following effect:- “11.12.97 Place Zonal Hospital, Dharamshala. Statement of Smt. Kamla Devi w/o Umardin, age 37 years, r/o Sherpur. Stated on oath that my husband is in police department and posted at NHPC, Banikhet. His C. No. is 25. I have two children. My marriage had taken place 9 years back. My husband had withdrawn Rs. 20,000/- (Twenty thousand) from his GPF account. His sister’s marriage was solemnized on 4.12.97 and he spent Rs. 10,000/- on her marriage. Regarding balance money amounting to Rs. 10,000/- he told that he had to take it from the cashier at Chamba. In November, 97 when I asked my husband about the salary, he told the children that he had given the same at home. When I asked my husband what would he give to the children and further told him to leave the children at home, he slapped me. At that very moment several persons were present there. Thereafter, I bolted him along with children in the bedroom and myself went to the kitchen. There I poured kerosene on me and set ablaze myself. This incident took place in our private/rented house at Kumladi on 10.12.97 at 8.30 pm. When I made cries, our house owner and other neighbours gathered there. They opened the door of the bedroom and poured water on me. Thereupon, they took me and my husband to police chowki, Kaloh. There the police informed the SHO of police station Dalhousie over phone and thereupon I was taken to Kakira hospital. 7 After that the SHO sent a vehicle and a constable and I was taken to Dalhousie. There I was given medical treatment and police recorded my statement. I do not know what statement I had made before the police as at that time I was confused/perplexed. Subsequently, I was referred to Dharamshala. During 9 years married life we used to quarrel with each other. I remained at my parents house for 3 ½ years. My husband used to beat me besides did not give me money. Due to which, I set myself on fire in order to end the life. I also lodged a complaint with the S.P. Chamba regarding behaviour of my husband and also told my parents about it. Whenever I wanted to go to the house of my parents he did not allow me. I have made this statement in sound state of mind. RO & AC Sd/- (H.S.Bhata) Sd/- Executive Magistrate, Kamla D/Shala 11.12.97 at 5.10 pm.” [Emphasis supplied] 9. Statement (Ext. PD) does not implicate the accused. With regard to statement (Ext. PJ), we feel that the same cannot be relied upon, apart from the fact that it does not inspire confidence. The same was got recorded by PW-9 without getting condition of mental state of the deceased verified from the Doctor. No doubt PW-8 states that in Dharamshala deceased was found to be in a conscious state of mind but then what was her condition at the time of recording the statement is not certified by a Doctor. Curiously PW-9 did not move any application before the Doctors for the purposes of recording her statement. He also did not record the 8 statement in the presence of the Doctor. Though he admits that no written orders of the S.D.M. were obtained before recording the same but clarifies that the same was got recorded on his oral directions. Surprisingly he does not even remember the name of the said S.D.M., who has also not been examined in Court. The contents of the statement are not corroborated either by PW-1 or by PW-4. No complaint from the office of Superintendent of Police, Chamba is placed on record. It is also not the allegation of PW-1 that the accused prevented her daughter from visiting her or that she had stayed at her parental house for more than 3 ½ years. 10. Even as per statements Ext. PJ the case of the prosecution is that the deceased was subjected to such cruelty which forced her to commit suicide. Significantly it is not that the accused had poured kerosene oil on the deceased and set her on fire. Even according to PW-4, accused was found bolted inside the room along with his children. Noticeably this room and the kitchen are not interconnected. Significantly this witness had unbolted the door of the room to enable the accused to come out of the same to rescue his wife. May be some altercations may have taken place which prompted the deceased to take away her life, but then except for statement Ext. PJ there is nothing to prove this fact. 11. With regard to cruelty, maltreatment and harassment the version of the mother (PW-1), to our mind does not inspire confidence. No doubt she has testified that immediately after the marriage, accused started maltreating her daughter who used to 9 complain to her about his mis-behaviour. But however we find that her version does not inspire confidence. Surprisingly she states that she is not aware of the reason as to why her daughter set herself on fire. This witness was with the deceased in the hospital on 11th- 12th December, 1997 yet she does not state that her daughter had disclosed the reason for the same. She also does not state that to find out the cause she had made inquiries, either from her grand- children or the neighbour(s) or for that matter the deceased herself. Further she had made exaggerations by deposing that the accused was a drunkard and on the date of the incident had beaten the deceased by giving blows with fists and kicks on the face, which in fact was also not the case of either the deceased or the prosecution. Also there is no medical evidence to corroborate this fact. Different Doctors had examined the deceased at different places on different dates. Yet, except for burn injuries, they did not find any other injury on her face. Significantly PW-1 admits that no panchayat with regard to the maltreatment / harassment was ever convened either by her or by her daughter. She admits that the deceased used to complain about the maltreatment and misbehaviour also by writing letters to her. However, no such letters have been placed on record. Why so? has not been explained by the prosecution. 12. The other witness to the alleged cruelty is PW-4. Now he does not depose about any such maltreatment/cruelty meted out by the accused to the deceased. He only states that there used to be a quarrel between the deceased and the accused. “They” used to 10 grapple with each other. He does not state anything further then that. Significantly this witness also does not state as to what prompted the deceased to set herself on fire. He does not narrate any talks which took place between him and the deceased. He also did not witness the fight which allegedly took place between accused and the deceased immediately prior to the incident. This witness also did not make inquiries from the children, who have also not been examined in the Court, to find out as to what had transpired between their parents immediately before the incident. Significantly he states that the accused and the deceased were living in his house for three – four years and yet he does not complain about the deceased either not being maintained or maltreated by the accused. 13. As such from the version of the prosecution witness it cannot be said that the prosecution has been able to prove, beyond reasonable doubt, that the accused had abetted the deceased to commit suicide or that the accused had subjected the deceased to cruelty so as to fall within the meaning of the word ‘cruelty’ under the Act. Mere marital discord or difference in domestic life would not by itself result into cruelty defined under the Act. 14. Thus to this extent we do not find any infirmity with the impugned judgment. 15. However, there is another disturbing aspect of the matter. According to Dr. L.B. Purohit (PW-8) deceased was referred to I.G.M.C. Shimla for further treatment. Medical record (Ext. PG/1 11 to Ext. PG/5) proved by him shows that the accused himself took his wife from the hospital at Dharamshala on his own responsibility. Prosecution has placed on record death certificate (Ext. PL) which shows that the deceased expired on 18.12.1997 at her village. According to PW-12, accused was arrested only on 12.2.1998 for the reason that he was absconding. We also find that there is no cross examination to the statement of this witness to the effect that after getting the deceased discharged from the hospital, accused did not get his wife treated in a hospital but took her home. The dead body was also disposed off without informing the police or getting the post mortem carried out. The accused is working in the police department of the State. He is a law knowing person. He ought to have taken his wife for better medical treatment to I.G.M.C Shimla as was so suggested by the Doctors at Dharamshala or somewhere else. Yet he failed to do so to save the life of his wife. He also did not disclose the factum of death of his wife to the police. No post- mortem was also got conducted by the accused. He knew that the matter was in the knowledge of the police and pending investigation. All these aspects are very disturbing and have neither been investigated by the police nor any action taken on the administrative side. We also find that there has been delay in recording the F.I.R. It was a serious case of burn injuries. Why was F.I.R. not recorded by police either at Bakloh, Kakira or Dalhousie on 10th/11th December, 1997 itself is also not evident from the record. As such on these limited aspects we direct the Director General of 12 Police, Himachal Pradesh, to get the matter investigated/inquired and promptly take appropriate action in accordance with law. Action taken report be submitted before this Court within six months from today. 16. The appeal is disposed of with the aforesaid observations. Accused stands acquitted for the charges offences and bail bonds, if any, furnished by the accused are discharged. (Justice R. B. Misra), Judge. (Justice Sanjay Karol), Judge. September_14_, 2011 (PK)