IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA. Cr. Appeal No. 208 of 1999 Reserved on : May 31, 2010 Date of Decision : July 9, 2010 State of H.P. …Appellant v. Dalip Chand & Others …Respondents. Coram: The Hon’ble Mr. Justice Deepak Gupta, Judge The Hon’ble Mr. Justice Sanjay Karol, Judge. Whether approved for reporting?1 No For the appellant: Mr. Rajesh Mandhotra, Dy. A.G. For the respondents . Mr. Y. P. S. Dhaulta, Advocate Sanjay Karol, J. For an offence alleged to have been committed on 14.6.1995, accused were put to trial. In terms of judgment dated 10.2.1999 passed by learned Sessions Judge, Hamirpur, in Sessions Case No.05 of 1996, titled as State of H.P. vs. Dalip Chand & Ors., accused stand acquitted of the charged offence. 2. It is the case of the prosecution that Smt. Asha Devi and Sh. Suresh Kumar were married to each other sometime in December, 1993. The husband was employed somewhere in Una and the wife used to reside with her in-laws in village Kohadra, 1 Whether reporters of Local Papers may be allowed to see the judgment? 2 Tehsil Barsar, Distt. Hamirpur, H.P.. There she lived with Beli Ram, accused (since expired) (her father-in-law), accused No.1 Dalip Chand s/o Sh. Beli Ram and brother of Suresh Kumar; accused No.2 Nirmala Devi, wife of accused No.1, sister-in-law (Bhabi) of Suresh Kumar and accused No.3 Sandla Devi d/o Sh. Beli Ram, sister of Suresh Kumar. One year after the marriage Smt. Asha Devi complained to her parents about the ill- treatment meted out by her father-in-law and all the accused persons. They used to taunt her that she did not know how to work properly. She was consoled by the fact that since her husband was good she should not bother about the harassment meted out by the remaining members of the family. About one month prior to her death, Smt. Asha Devi along with her husband visited her parents on the occasion of the ‘Nauhle’ festival. Even then Smt. Asha Devi complained to her mother Smt. Taro Devi (PW-2) about the ill-treatment meted out to her by the accused persons. About 20 to 25 days after the ‘Nauhle’ festival, Smt. Saraswati Devi (PW-10) visited Sh. Kanshi Ram (PW-1) father of Smt. Asha Devi, and told him that she had learnt about the illness of his daughter. Both PW-1 & PW-10 visited her to inquire about her health. There Sh. Beli Ram not only feigned ignorance about any ailment but stated that ever since Smt. Asha Devi had come back from her parental house she had put his family in trouble. PW-1 then told Beli Ram that had he been informed about the illness all arrangement for her 3 treatment would have been made. This enraged Beli Ram and consequently he slapped PW-1 two-three times. PW-1 then asked his daughter to accompany him to his house so that she could be given proper treatment but was prevented by Beli Ram who retorted by saying that brides go back to the matrimonial house only after death and not during lifetime. PW-1 & PW-10 alone left the house and narrated the incident to Sh. Dhani Ram (PW-4), President of Gram Panchayat Kiara Bagh who advised them to lodge a complaint in writing which however was not done. On 14.6.1995, PW-1 received information that her daughter was seriously ill and, therefore, he along with PW-2 and his sons Sh. Ramesh Kumar and Sh. Jagdish Chand (PW-3) went to see her but found her lying dead on the cot. 3. Sh. Sukh Ram member of the Gram Panchayat Kiara Bagh informed at Police Station, Barsar that Smt. Asha Devi had committed suicide by hanging herself from the roof of the house. The information was recorded (Ext.PF) in the daily diary. SI Narain Dutt (PW-12) along with other police officials rushed to the spot and carried out necessary investigation. The inquest report (Ext.PB) was prepared. At the spot dupatta was found tied from the ‘Balla’ of the roof height of which was 7 feet 4 inch. During investigation PW-1 made a statement (Ext.PA) and based on the same F.I.R. dated 14.6.1995 (Ext.PG) was registered with Police Station, Barsar under Sections 498-A/306 IPC. On the spot an empty carton of card board containing a suicide note 4 (Ext.P2) was found. From the Attache-Case, allegedly belonging to the deceased one exercise book (Ext.P1) was taken into possession vide recovery memo (Ext.PC). Photographs (Ext.P-3 to Ext.P-6) were taken by Sh. Vijay Sharma (PW-9). The body was sent for post mortem which was initially carried out by Dr. R. K. Kanwar (PW-5) along with Dr. Sushil Kumar. However, vide report (Ext.PD) the case was referred for further post mortem to the State Hospital at IGMC, Shimla where Dr. D. K. Ghosh (PW- 8) conducted the post mortem and prepared his report (Ext.PH). Hand writing on Ext.P-1 & Ext.P-2 was referred to Govt. Examiner of Questioned Documents, Shimla and Sh. R. K. Jain (PW-11) gave his report in terms of which the hand writing on both the documents was found to be of the very same person. With the completion of the investigation challan was presented in the Court for trial. 4. No case against Sh. Suresh Kumar husband of Smt. Asha Devi was made out. Sh. Beli Ram died after the incident and consequently the present accused persons were charged for having committed an offence punishable under Sections 306, 498-A read with Section 34 IPC to which they did not plead guilty and claimed trial. In order to prove its case prosecution examined 12 witnesses and the statement of the accused under Section 313 Cr.PC was also recorded. In defence the stand taken is that deceased used to remain sick and depress. 5 5. The Court below acquitted the accused of the charged offence, hence the present appeal. 6. The prosecution witnesses initially wanted to set-up a case of murder. This is apparent from the statements of PW-1, PW-2 & PW-3, according to whom Smt. Asha Devi had been done to death by the accused persons. However, there is no evidence to this effect on record. Even these witnesses have qualified their statements by deposing that the deceased had died due to the ill-behavior of the accused persons. PW-12 categorically deposed that his investigation did not reveal the case to be that of murder. 7. In order to prove its case prosecution has examined Sh. Kanshi Ram (PW-1) father of the deceased; Smt. Taro Devi (PW- 2) mother of the deceased; Sh. Jagdish Chand (PW-3) brother of the deceased; Sh. Dhani Ram (PW-4) Pradhan of Gram Panchayat, Kiara Bagh; Dr. R. K. Kanwar (PW-5) who carried out the first post mortem; MHC Rakesh Chand (PW-6) who received a telephonic message in the Police Station and reduced it into writing; LHC Sarwan Kumar (PW-7); Dr. D. K. Ghosh (PW- 8) who carried out the subsequent post mortem; Sh. Vijay Sharma (PW-9) who took the photographs at the spot; Smt. Saraswati Devi (PW-10) sister of PW-1; Dr. R. K. Jain (PW-11) Deputy Govt. Examiner of Questioned Documents and SI/SHO Narain Dutt (PW-12) who carried out the investigation. PW-1, PW-2, PW-3 & PW-10 are immediate family members of the 6 deceased and PW-4 is the Pradhan of the area. The prosecution case primarily rests on their testimonies. 8. Documentary and ocular evidence reveals presence of ligature marks on the dead body of Smt. Asha Devi. Initially the post mortem was carried out by PW-5. He could not ascertain the cause of death, hence referred the matter to the State Hospital at Shimla. PW-8 who eventually carried out the post mortem opined as under:- “Taking into consideration the police inquest, the photographs and the presence of ligature mark on the photographs (on the body of the deceased – neck region) and examination of the ligature material, collectively goes in favour that in all probabilities the deceased had committed suicide by hanging.” 9. PW-12 admits that he did not record the statement of any person from village Kohadra in relation to ill-treatment meted out by the accused persons to the deceased. He admits that his investigation revealed that both Sh. Suresh Kumar and Smt. Asha Devi had cordial relations with each other. Sh. Suresh Kumar had been visiting his in-laws house. He also admits that before the police had reached, the girl’s parents had reached the spot where he recorded the statement of PW-1. He also admits that the dead body of Smt. Asha Devi lying on the cot had a blue colour ligature mark on the neck. The duppata was tied from the ‘Balla’ of the roof. It had two knots. It is not the case of the 7 prosecution that the accused had created any false evidence to mislead the course of investigation. 10. The proceedings were initiated on the basis of the information received on telephone from Sh. Sukh Ram, Member of Gram Panchayat, Kiara Bagh. Now importantly the police has not examined this person. The police has also not associated any person from the village of the accused persons. None has also been produced as a witness in the Court. Perhaps they would have thrown some light about the way the demand was kept by the accused persons. 11. Statements of PW-1, PW-2, PW-3, PW-4 & PW-10 need to be examined to ascertain the instances of cruelty and ill- treatment meted out by the accused persons. 13. PW-1 has narrated three instances of cruelty meted out by the accused to the deceased. According to him, one year after the marriage the deceased complained about the ill-treatment meted out by the accused persons. The accused persons used to say that the deceased was “not good” and “her working was also not good”. They also did not “tolerate her”. Now, these are the only allegations of ill-treatment narrated. There is no reference to date, time and place. One month prior to her death when Smt. Asha Devi had visited him on the occasion of ‘Nauhle’ festival she had again complained about the ill-behaviour meted out by the accused to her. Even here he is vague and unspecific about the allegations. According to him he along with PW-10 had 8 visited the house of the accused to inquire about the illness of the deceased. He found Beli Ram sitting on the cot in the Court yard of the house. PW-10 went inside the house and he had conversation with Beli Ram. PW-10 was not present then. Upon making inquiries about the illness of the deceased he was told by Beli Ram that the exact cause of ailment was not known but however, ever since she had come back from her parental house she had put the family in trouble. PW-1 then told Beli Ram that had he been informed about the illness he would have arranged for her treatment. At that Beli Ram got enraged and slapped him 2-3 times on his face. He had asked the deceased to accompany him but was stopped by Beli Ram who proclaimed that brides leave the matrimonial house only after death. Then he along with PW-10 went to meet PW-4 and narrated the incident to him. The version of PW-2 & PW-3 is also to the said effect. 14. To our mind their statements do not inspire confidence. Even as per PW-1 the incident had not taken place in the presence of PW-10 and admittedly PW-2 & PW-3 had not accompanied them to the house of the accused persons. Now PW-10 has come up with a different version. According to her the accused persons had also demanded money. No other witness has deposed to the said effect. This witness has made substantial improvements from her earlier statement recorded with the police with which she was confronted. The fact that the accused persons had demanded money or that they had 9 killed Smt. Asha Devi does not find mention in her statement mark DC. Her statement that when Beli Ram slapped PW-1 she was sitting besides him in the Courtyard stands contradicted by PW-1, according to whom she was not present in the Courtyard as she had gone inside the house. Importantly she admits not to have spoken about the incident to anyone. She does not remember the date, month and the year when she had met the deceased. She has further contradicted by stating that both she and PW-1 had narrated the incident to PW-4. However, PW-4 does not support this version of PW-10. According to him only PW-1 had come to meet him at his house. He was informed that Beli Ram claimed that the deceased had been sent to the matrimonial house in an ailing condition and he was not in a position to meet the expenses of her treatment. The incident of slapping by Beli Ram was also narrated to him. Now the fact that the accused persons were not in a financial position to treat the deceased does not find mention in the statements of PW-1, PW- 2, PW-3 & PW-10. Even according to PW-4 despite advise no written complaint was made by PW-1. 15. The version of PW-4 in relation to the incident also does not inspire confidence for the reason that he admits that he had not narrated the same to the police. He was the Pradhan of the area and was duty bound to truthfully inform the police about the events which had allegedly led to the unfortunate death of a young girl. Even PW-1 admits that he had not made any written 10 complaint to the Pradhan, police or other members of the village or Biradari. Thus, this incident of cruelty cannot be said to have been established by clear, cogent and convincing material on record. 16. PW-1 admits that till about one year of the marriage the deceased had not made any complaint against the accused persons. It has come on record that the husband of the deceased was staying at Una and their relations were cordial. In this background the statement of PW-1 with regard to the ill- treatment meted out to the deceased by the accused persons does not appear to be probable and true. In any event the allegations of cruelty are extremely vague and unspecific. No specific instances with regard to the time and place has been narrated by the prosecution witnesses. The accused told the deceased that she was not good and her working was also not good. This is all that the accused persons allegedly told the deceased. Admittedly no complaint was ever made by the parents of the deceased to anyone. Other than the immediate members of the deceased no independent witness has been examined by the prosecution. Importantly even in the statement of Pradhan there is no reference of the earlier instances of cruelty meted out by the accused to the deceased. From the record it cannot be said that there has been constant magging or immediate provocation prompting the deceased to commit suicide. 11 17. The deceased is stated to have left a suicide note written on a card board (Ext.P-2) by examining PW-11. The prosecution has proved that the suicide note (Ext.P-2) and the note book (Ext.P-1) is written by the same person. No doubt note book (Ext.P-1) was recovered from the personal belongings of the deceased but however this fact by itself would not prove that the same was actually written by the deceased. None has come forward to prove the hand writing of the deceased. Even assuming that the suicide note (Ext.P-2) was written by the deceased still it does not advance the prosecution case any further. Importantly there is no categorical reference of any ill- treatment and instances of cruelty meted out by the accused persons to her. She had wanted to live with her husband which was perhaps objected to by the accused persons. The reference that the accused persons did not allow her to live perhaps is in this context. Her anguish is more out of the fact that she could not live with her husband. One sentence in the suicide note cannot be read in isolation. In the note there is no reference about any dowry demand or cruelty. Nothing has been attributed to any of the accused persons specifically. Note particularly mentions that “her husband was a good person and she had gone due to her illness”. 18. No material has been proved on record to establish that the deceased had been driven to commit suicide. It cannot be said that the prosecution has been able to prove beyond 12 reasonable doubt the fact that the deceased had been harassed by the accused or that their willful conduct was of such a nature that it made the deceased to commit suicide or cause grave injury or danger to her life, limb or health. 19. The accused have had the advantage of having been acquitted by the Court below. Keeping in view the ratio of law laid down in Mohammed Ankoos and others vs. Public Prosecutor, High Court of Andhra Pradesh, Hyderabad, (2010) 1 SCC 94, it cannot be said that the Court below has not correctly appreciated the evidence on record or that acquittal of the person has resulted into travesty of justice. No ground for interference is called for. The present appeal is dismissed. Bail bonds, if any, furnished by the accused are discharged. (Deepak Gupta) Judge. July 9 , 2010. (Sanjay Karol) (rana) Judge.